California has received its marching orders for improving safety in the workplace while Montana anticipates legislation that has the medical community in a tizzy, forcing what might become a last-ditch shot at compromise.

Critical Labor Department report

According to a Sept. 29 article in the Los Angeles Times, “The U.S. Labor Department issued a critical report on enforcement of workplace safety in California on Tuesday and ordered the state to fix myriad problems, including poor training of safety inspectors and delays in responding to complaints.”

Among the 40 issues the Feds singled out concerning a state agency, the Division of Occupational Safety and Health:

1. inspectors are lax in reviewing companies’ history in actions throughout the state before making decisions whether to write them up  “for repeat violations”
2. the division’s appeals process is lacking.

Problems reported previously

The article also pats itself on the back: “The Labor Department’s review mirrors many of the findings of a Times investigation last fall that found the division’s appeals board repeatedly reduced or dismissed penalties levied by health and safety inspectors, even in situations in which workers died or were seriously injured.”

Previous reporting by the paper had revealed problems at Bimbo Bakeries USA, “where nine employees have lost parts of fingers or a limb in several California plants since 2003,” and with a construction site at the Golden Gate Bridge, where a worker “plummeted 50 feet to his death.”

Dismissals and reductions on technicalites

At the bakery, says the Times, “Many of the penalties levied by the Cal/OSHA were dismissed or reduced on technicalities by judges working for the appeals board, so the company wasn’t required to immediately fix hazards.”

At the construction site, an investigator found “that the contractor had not provided employees with scaffolds; it issued three ‘serious’ citations and a $26,000 fine, records show.”

Upon appeal from the contractor, an administrative law judge dismissed the case, ruling that “Cal/OSHA had failed to determine the company’s legal name”–the agency had listed the company in its complaint as the name on company business cards rather than going to the trouble of looking up the corporation’s legal name.

The paper says workplace safety advocates lauded the labor department, saying its response shows “that safety in California has been suffering for years.”

” “I don’t think people realize how broken our system is,’ said Gail Bateson, executive director of  Worksafe, a nonprofit that advocates for workers.”

Director disputes feds

But the feds may have gotten a few things wrong, too. The state agency’s director, Len Welsh, disputed some of the findings.

” ‘They got a lot of stuff frankly wrong, and embarrassingly so,’ he said. For example, he said, one finding accuses the division of not opening investigations into seven fatal accidents quickly enough. But another finding says there were two such accidents. When his office questioned the findings, federal officials couldn’t explain the discrepancy, he said.”

The agency and board have month to respond with corrective plans. It’s part of a larger effort involving 25 U.S. states that operate such safety programs under federal jurisdiction–Hawaii’s is so bad, says the paper, that it “could be taken over by the federal government.”

Montana medicos mount counter-offensive

In Montana, doctors and hospitals are keen to intervene in a workers comp reorganization plan that only last month seemed like a done deal, all set for delivery to the state legislature when it reconvenes in January.

Trial lawyers had aligned with doctors’ group in opposition to the plan, seen as necessary by labor and business groups who work with one of the most expensive workers comp systems in the nation.

An Aug. 23 piece at InsuranceJournal.com led off this way: “A proposed workers’ compensation overhaul hammered out by business and labor is going to Montana’s full Legislature, despite stiff opposition from the equally powerful trial lawyers and doctors groups.

Back in June the settlement for the 9/11 “first responder” workers seemed pretty clear. We covered it here, noting that BusinessWeek says the judge termed the agreement “a very good deal,” and  “signed an order dismissing the lawsuit, and set a June 23 public hearing for claimants and their attorneys to raise any objections. At least 95 percent of the plaintiffs must consent to the agreement for it to become legally binding.”

Judge approved settlement with New York City

At that hearing, according to a June 23 piece at CNN.com, “A U.S. district judge in New York approved a settlement Wednesday that could pay more than $700 million to thousands of 9/11 first responders exposed to toxic dust at ground zero.

“Before approving the settlement Judge Alvin Hellerstein listened to testimony from a sampling of some of the 10,000 plaintiffs at Wednesday’s hearing about the health battles that have plagued them since working at the World Trade Center site.”

House passes new bill, separate from settlement

But today the House passed “legislation to provide billions of dollars for medical treatment to rescue workers and residents of New York City who suffered illnesses from breathing in toxic fumes, dust and smoke at ground zero,” according to a post at the “City Room” page in the The New York Times’ Web site.

How to sort this out–what’s all this mean for victims and taxpayers alike?

Apparently, the legislation aims at filling gaps left by caps that were agreed to in the settlement, including caps on attorney’s fees–which themselves have come under fire.

Legal fees in settlement: $124 million

According to a Sept. 26 piece in the New York Post, “Lawyers hired by the city to fight the Ground Zero lawsuits have socked taxpayers with a $124 million tab — one of the biggest hauls by a single legal team in the history of billable hours, experts say.”

The new legislation’s goals

Major components of the  James Zadroga 9/11 Health and Compensation Act include:

• reopening the original federal fund and
• providing compensation beyond that awarded in the class-action settlement with the city that was approved by Judge Hellerstein in June.

According to the Times:

In addition, the bill includes a provision that would have allowed money from the Victim Compensation Fund to be paid out to anyone who receives payment under the pending settlement stemming from lawsuits that 10,000 rescue and cleanup workers filed against the city. At the moment, anyone who receives a settlement from the city is limited in how much compensation they can receive from the fund, according to the bill’s sponsors.

Until now, Congress has appropriated money on an annual basis to monitor the health of people injured at ground zero and to provide them with medical treatment.

Settlement deadlines extended

Another crucial component is that the deadline has been extended in the ongoing settlement procedures.

According to a choppily (perhaps hastily) worded press release from the Napoli Bern Ripka law firm:

Deadline extended two months until November 8, 2010 from September 8 to allow plaintiffs more time to consider settlement after unexpected logistical delays.

Over 50% of claimants have already opted-in to the settlement, with less than one-half of one percent opting-out.

James Zadroga 9/11 Health and Compensation Act of 2010 amended to enable plaintiffs to accept settlement payments and still be eligible for re-opened Victim Compensation Fund, if Congress approves.

Thousands of responders included

So if you or a family member were one of the tens of thousand–who traveled from across the nation–to be included in the lawsuit, the good news is that now there’s more time to consider whether to opt-in or opt-out. And, of course, more benefits may open up if the federal legislation makes it through the Senate.

According to the Times, “The bill’s fate is unclear in the Senate. Republicans have enough votes to filibuster the measure, and Senate Democrats have not shown great interest in bringing the measure to the floor.”

In the House, the bill garnered a modicum of bipartisan support; 17 Republicans voted yes, in an overall vote of 268 to 160. Three Democrats opposed.

Zadroga and other victims

According to International Business Times, “The bill is named for James Zadroga, a New York City police detective who worked several weeks at Ground Zero, and is the first 9/11 responder to have his death in 2006 attributed to illness contracted at the site.”

The Times says sponsors of the bill contend that “nearly 60,000 people [are] enrolled in a variety of health monitoring and treatment programs related to the 9/11 attacks; the IBT reports that more than “20,000 people, according to government figures, have suffered since the event, either from exposure to the toxic dust of pulverized buildings and combusted chemicals, or injuries, or post-traumatic stress, or two or all three. Says the IBT account:

An estimated 900 people have, like Zadroga, died from diseases contracted at Ground Zero.

Five days following the 2001 attacks on the World Trade Center, Christie Whitman, the Bush administration’s head of the Environmental Protection Agency, announced at Ground Zero that the air was safe.

“The good news continues to be that air samples we have taken have all been at levels that cause us no concern,” Whitman said.

A month later, when the EPA’s own data was made public, it was shown that Whitman had not told the truth.

A former compensation fund for victims ran out in 2003. Supporters of the Zadroga bill say that many illnesses only came to the fore after the former fund closed, and that many people were only partially compensated by the that fund.

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Frequently enough, a workmen’s compensation case may be so complex as to demand legal representation. However, sometimes what seems like a cut-and-dried situation to an injured worker may result in a smaller award than envisioned–or even a denial. 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

Here’s another case demonstrating the complexity of the law and official regulations and their effects on workers’ compensation claims.

As regular readers know, awarding of benefits can often hinge on whether the injured person was actually on duty at the time of the incident. From such a seemingly straightforward proposition, the number of permutations can be staggering. In one case, a woman attacked by a 200-pound chimpanzee faced the prospect of foregoing the potential of a much larger award if she were, in fact, found to be on “on the job,” rather than merely helping her friend who happened to also be her boss.  In the same case, the police officer who had to shoot the marauding chimp wound up being mired in an apparent Catch–22, bogged down between provisions for stress stemming caused from responding to human attacks versus those of animal attacks.

We’ve also discussed cases involving fire fighters in West Virgina–which can, in turn, create puzzles for state insurance regulators and homeowners. Another fire fighter-related case is linked to here, where we discuss a former police chief who cut a deal for disability classification, even as he was hiring in to a new job.

Case began in 2002

This case involves a police officer who died during a successful rescue and the denial of benefits to his widow. She’s been battling the system for nearly a decade. Here’s the lede from JDSupra.com: “In August 2002, a 12-year-old boy was swimming in the upper Rio Grande river in New Mexico during a church event when he suddenly slipped below the surface of the water. Kevin Schultz, an off-duty officer from the nearby town of Pojoaque Pueblo, sprang into action and saved the boy from drowning.

“Sadly, Officer Schultz did not survive.”

Ready and willing

Well, that seems pretty conclusive, at first blush, doesn’t it? “an off-duty officer” from a “nearby town”…

Not so fast.

We’ve all heard of public safety officers who are expected to be willing at all times, ready to react to threats of imminent danger as though they are on duty anytime they’re in public– a notch above “regular citizens” who are subject to provisions for failure to render aid.

Indeed, descriptions of Schulz paint just a  picture, that of the “kind of officer” who routinely made sure to pack his badge, a radio, and “service revolver” to be handy if he were to encounter an emergency. Of course, in and of itself, Schulz’s point of view may have no bearing on the rules and regulations. In other words, what if he were merely one of those “gung-ho” types?

However, the officer’s widow was reportedly told, ” ‘Your husband, Kevin Schultz, died in the line of duty,’ said Pojoaque lieutenant governor George Rivera (now governor) in 2003.”

Furthermore, “[a]fter his tragic death, he was awarded the U.S. Coast Guard’s Silver Lifesaving Medal and a Medal of Valor from Pojoaque Pueblo. Both citations praised Schultz for bravery beyond the call of duty.”

Beyond the call?

On first reading, you might think, “OK, not only was he on duty by virtue of circumstance but also he went beyond the call of duty–which would tend toward awarding his widow any benefits in question, without question.”

Yet, others might respond, “No, he was literally beyond duty. Heroic? Yes–but nevertheless beyond the limits of duty, or, tragically, “outside his jurisdiction.”

So after winding our way through these considerations, surely a pronouncement from the New Mexico Department of Public Safety seems in order.

According to these, ultimately law-firm derived sources, we not not only have that but from the justice department this, as well:

The New Mexico Department of Public Safety concluded that Schultz had been killed in the line of duty. The Justice Department approved his family for benefits, acknowledging that he was killed in the line of duty. He is listed on memorial walls in both Santa Fe and Washington, D.C., which commemorate officers killed in the line of duty.

If true, that would seem to settle it, right?

Overruled

Nope. According to document linked at JDSupra.com:

Unfortunately, the workers’ compensation system says the fatal accident did not occur during the course of Schultz’s employment, and they denied his widow’s claim for workers’ comp death benefits.

Eight years after her husband’s death Schultz, who is now subsisting on Social Security disability, is still fighting for those benefits and a recent New Mexico Supreme Court ruling may make it possible for her to win.

We’ll look for that court ruling and update this story as we know more.

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Frequently enough, a workmen’s compensation case may be so complex as to demand legal representation. However, sometimes what seems like a cut-and-dried situation to an injured worker may result in a smaller award than envisioned–or even a denial. 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

Imagine a state trooper racing down a crowded, post-holiday Interstate, en route to the scene of a crash, his vehicle’s speed sometimes exceeding 120.

Now, rather than the intensely focused concentration one might expect from a trained high-speed driver, think instead of the trooper driving while e-mailing another officer and cell-phoning his girlfriend.

Teens’ car bisected

If that sounds like a formula for tragedy, you’re on track. The result was the deaths of two teenage sisters, Jessica (18) and Kelli Uhl (13), killed when former Illinois State trooper Matt Mitchell’s speeding vehicle jumped the median on I-64 and sliced through the car they were in.

We’ve covered some unusual workers comp cases, from the unusual to the offbeat to the wacky–even bizarre. But Mitchell’s case takes the discussion to a different level.

The crash occurred in 2007, the day after Thanksgiving, and Mitchell spent nearly two years suspended from duty but drawing full salary–nearly $70,000.

Guilty plea nets 30 months’ probation

As reported Sept. 22 at the St. Louis Post-Dispatch’s Web site, “He eventually pleaded guilty of two counts of reckless homicide in a deal for 30 months on probation. He also resigned from the Illinois State Police, which was planning a disciplinary case against him.”

Latest development sparks outrage

Then last week the ex-trooper filed for workmen’s compensation for his own injuries sustained in the wreck.

Observers are outraged. Not only will taxpayers ultimately foot the bill surely to come from the pending wrongful deaths suit, but because the trooper was a state employee, his workmen’s compensation benefits will also come from state coffers.

Now, this is sort of an inverse proposition to  the volunteer firefighter we discussed, whose case hinged on whether he could be called to duty by circumstances–that is, by being or coming onto the scene of an accident–or whether he could only be called officially to duty by receiving a call through channels (by the dispatcher).

On duty? No doubt

No, in Mitchell’s case there is no doubt he was on duty. According to a southwestern Illinois news outlet, that question was even legally finalized in civil court:

During the hearing on the civil suit filed by the Uhls’ parents in the Illinois Court of Claims, the Illinois attorney general, who represented the state police in the suit, signed a stipulation agreeing that, despite his plea to the criminal charges, Mitchell was acting in his capacity as a state trooper when the accident occurred.

“That admission seals the deal,”[said Rod] Thompson [a Belleville worker's compensation attorney]. “That’s all you need to get a compensible [sic] injury.”

Negligence not an argument

According to the bnd.com account, the state’s only out would have been to be able to prove that Mitchell was not on the job and that three lawyers agree he is due to receive the workers comp bennies. Furthermore, even Regular Joe employees, under state law, can be negligent or even high and still qualify for benefits:

“If the accident occurred in the furtherance of the function of your employer, even if it was done in a negligent manner, it can be compensible [sic] under the Worker’s Compensation Act,” said Rod Thompson, a Belleville worker’s compensation attorney.

“If an accident arises out of the course and scope of a person’s employment, the employee is entitled to worker’s compensation, despite their poor judgment,” said Bruce R. Cook, a Belleville lawyer who handles worker’s compensation cases.

Ian Elfenbaum, a Chicago lawyer, said an employee can be under the influence of drugs or alcohol when an injury occurs and still collect worker’s comp benefits.

“You can be reckless and even negligent while working in the course and scope of your employment,” said Elfenbaum. “Negligence or recklessness on the part of the employee is not a defense for the employer.”

‘Permanency’ awards

Mitchell  received what were reported as severe leg injuries.

His injury might also qualify him for permanent benefits, according to the Post-Dispatch. “Under Illinois law, an injured worker may be entitled to a “permanency’ award, said Michael Korein, a personal injury attorney who practices in East St. Louis. The amount is determined by the type and degree of permanent injury.”

In effect, Mitchell’s portion of the incident alone could cost the state hundreds of thousands of dollars–in non-taxable benefits–not to mention any award in the wrongful death lawsuit.

The bnd.com piece contrasts the state’s intent toward injured workers against Cook’s regard for the ex-trooper’s claim: “Illinois worker’s compensation was designed to allow injured workers easier access to health benefits and awards, Cook said, adding that ‘this claim is an insult to taxpayers and those two girls’ families.’ ”

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Frequently enough, a workmen’s compensation case may be so complex as to demand legal representation. However, sometimes what seems like a cut-and-dried situation to an injured worker may result in a smaller award than envisioned–or even a denial. 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

In the Northeast, workers comp issues are making headlines via reduced claims in Rhode Island and price hikes in New York, while an unrelated study suggests that impairment ratings for injured workers are often wrong, most often erring on the side of the patient. On one hand, the company that performed the study has a history of similar findings; on the other, the cumulative effect could be bad news for both employees and employers.

Rhode Island claims down during Recession

Earlier this month, Risk&Insurance.com ran a piece about a state judiciary report that indicates the Great Recession has contributed to a significant reduction in workers comp claims in Rhode Island.

Apparently, though, it’s not that the crippled economy and raging unemployment have made workers super cautious about safety technique or that we’re suddenly safer without those pesky, “extra employees” cluttering up the workplace. No, the concern is that today’s on-edge employees are reluctant to report injuries lest they be canned.

Quoted in the piece was Mark Gemma, described as a workers’ compensation attorney based in Providence, R.I., who “said a recently released judiciary report suggests a disturbing trend of fewer employees reporting workplace injuries and illnesses out of fear they might lose their jobs.’

‘Employers have a duty to employees’

” ‘It’s disturbing to me because, regardless of economic conditions, employers have a duty to provide a reasonably safe workplace for their employees, and employees have a right to make sure employers fulfill that legal obligation,’ [Gemma] said. ‘Given economic conditions, I certainly understand workers’ concerns, and I realize that some workers may be misinformed about what can happen if you report an injury or illness.’

Courts see further irony

” ‘The truth is that the law entitles you to compensation if you are harmed at work, and the law strictly prohibits your employer from retaliating against you.’ ”

This edition of the annual state judiciary report compared filings in 2009 against those in 2008, finding a 7 per cent decrease, at least in part attributable to the lousy economy and Rhode Island’s relatively high unemployment rate.  The report also mentions the counterintuitive possibility that fewer initial claims may cause litigation to rise in years ahead (from page 14):

“Fear about the response to such reports and a perception that a work-related injury could jeopardize the employment relationship tends to depress the number of injury claims and, therefore, the number of cases filed with the court. Ironically, since many of these cases will ultimately result in disability and litigation, the number of petitions seeking to affix liability for a work-related injury will ultimately rise in upcoming years.”

Beyond the obvious concerns of the effects on morale and productivity, the findings also call into question the depth of understanding that employees have concerning their rights after suffering job-related injuries.

1970 act provides fines, penalties

“Gemma said many workers may not know that the Occupational Safety and Health Act of 1970 protects them from discrimination based on a ‘protected activity,’ which includes reporting work-related injuries and illnesses. The act also provides for heavy fines and penalties if an employer actively discourages employees from filing such report[s].”

The next item doesn’t affect employees in New York directly, but it could affect hiring and layoff policies there, if the proposed rate hike gets approved.

Rate hike proposed in New York

According to a Sept. 7 brief at InsuranceJournal.com, “The New York Workers’ Compensation Board is proposing to raise portions of the medical fees schedule by 30 percent.”

Although not explaining the who-or-how the rate hike can be approved (or contested), the brief does note that the increase would involve injury “evaluation and management codes” of the board’s approved payment schedule, “which hasn’t seen an increase in payment rates since 1996.”

Apparently also up for grabs? The NYWCB also said further review will address fees for: “medical, podiatry, psychology and chiropractic” classifications.

Study finds inflated impairment ratings

Our final item for this post also comes from a recent Risk&Insurance.com posting, apparently based on a PR by the company that performed the study, Impairment Resources.

According to Impairment Resources, “A study of more than 6,200 impairment ratings spanning five years revealed an error rate of 78 percent, resulting in ratings averaging more than twice what was appropriate.”

Samplings not random

The company does not claim that the study is based on random samplings but does contend that because all cases had been submitted for “expert review  . . . [that it therefore] sheds light on reasons for inaccuracy in impairment ratings, suggests areas for improvement, and echoes the findings of a similar study performed in 2005.”

The company, formerly known as Brigham & Associates, says it “examined ratings from eight states, with 81 percent of the cases being from California and 91 percent rated using the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.

Study’s highlights

The “observations” highlighted in the study include:

• “There are significant problems with interrater reliability with Fifth Edition ratings.
• “Most ratings were performed incorrectly, resulting in ratings averaging more than twice what was appropriate.
• “Problems are more common in jurisdictions where physicians use approaches other than those specified by the AMA Guides than in jurisdictions where physicians are trained, experienced, and perform in accordance with best practices.
• “Inaccurate ratings are often the result of bias, confusion, and misapplication of the Guides.
• “Preliminary data suggest that both the error rate and magnitude of error may be less with Sixth Edition ratings.

“Currently, 16 states use the Fifth Edition; 10 use the Sixth Edition; 10 use earlier editions; 7 use state-specific guidelines; and no guidelines are specified in the remaining states.”

The main thrust of the recommendations seem to be for impairment raters to use the Sixth Edition of the guide–and to have a review performed by a company such as Impairment Ratings. Although conceding that ratings can come back at a lower rate than warranted, the company line is that “stakeholders” are paying out far more than appropriate each year, due to ratings that are too high.

Ratings from treating physicians cited as frequently too high

Judging from previously published material by company principal Christopher R. Brigham (published, apparently, when IR was still Brigham & Associates), the chief source of too-high impairment ratings are those originating with a treating physician. Some highlights from a 2006 article, “AMA Guides to the Evaluation of Permanent Impairment“ (emphasis added):

• “The error rate for the review of 132 Florida cases was a staggering 94 percent. The vast majority of Florida ratings were performed by treating physicians typically prior to the probable date of maximum medical improvement.
• “Of the 1,229 allopathic (M.D.) reports reviewed, 78 percent were determined to be erroneous, of the 47 osteopathic (D.O.) reports the error rate was 85 percent, and of the 141 chiropractic (D.C.) reports reviewed the error rate was 88 percent. Errors were more common if the rating was by the treating physician.
• “The nature of the errors is such that it is more likely that an erroneous rating will be higher, rather than lower. Most medical schools and residency training programs do not include instruction on the assessment of impairment, disability or causation. Therefore, many physicians lack an adequate ability to assess these and other medicolegal issues.
• “The rating physician must be “independent and unbiased.” This can be challenging for any evaluator, but is more likely to be problematic for the treating physician since there is an inherent patient advocacy role.“

In other words, this is something to know if you’ve been hurt on the job and your doctor says you may not fully  recover. If such is the case, you’ll likely need an experienced, trained attorney–if you don’t have one, already. The fact that such third-party reviewers as IR consider treating-physician ratings as a serious red flag is a matter for you and your attorney to discuss.