Monthly Archives: November 2010

West Virginia likely to tap homeowners in VFD areas; California commissioner rejects increase; some companies get relaxed rules in NY

Following up on previous coverage of workers’ comp insurance for the many volunteer fire fighters in West Virginia,  we see that homeowners are likely to be tapped one way or the other–either through increased rates for homeowners’ insurance in areas that lose VFDs, or more likely through–presumably–smaller fees for to make up the difference in premiums.

In other news, the insurance commissioner in California has rejected an increase in that state’s workers comp rate, and in New York some out-of-state businesses have won a years’ long round of lobbying that will ease restrictions for their work on occasional construction projects.

West Virgina homeowners face ‘token increase’

According to a Nov. 29 update at Firehouse.com, “Predictably there will be some squawking if and when the idea surfaces in new legislation, but West Virginia homeowners likely will be called on to pay a token increase to help volunteer fire units purchase workers’ compensation coverage.

“At least one issue that plagued the 400-plus departments in the state has been resolved — the matter of broadform coverage.”

The “broadform coverage” issue is huge in this state, where VFDs are the norm–only 12 (or 11, depending on who’s counting) are full-time fire departments, another 16 are a combination full-time and volunteer, and the rest (447) are volunteer outfits.

Governmental immunity for VFDs

A “special committee,” presumably the one assembled by former Gov. Joe Manchin (from which is due a report in December), helped determine that VFDs are covered by a governmental immunity provision.

“Put simply,” says the Firehouse account,  “it means officers of volunteer units are shielded against lawsuits for sending members into risky situations which, for the most part, is where they go in the line of duty, explained Sam Love, a former VFD chief and now a lobbyist for the departments.

” ‘Volunteer Fire Insurance Services picked up broadform coverage for volunteers at a reasonable rate,’ Love said. ‘That part is settled.’ ”

What remains unsettled is who’s going to pay. Former carrier Brickhouse was all set to drop the coverage earlier this year but extended the deadline until next summer.

Without VFDs, many homeowners’ insurance rates ‘would soar’

” ‘Unfortunately, I think it’s going to go back to homeowners,’ Love said, referring to a possible increase in the 1.55 percent now paid and distributed among volunteers, paid firefighters’ pensions and the teachers retirement system.

” ‘This is the most equitable way to do it,’ Love said. ‘If not for the volunteers, God only knows what they would pay for insurance. The premiums would go through the roof.’

“Without the VFDs, he said, homeowners can expect their insurance rates to soar.”

Lame duck commish rejects rate hike–again

According to a Nov. 29 post at the Orange County Register, “Outgoing state Insurance Commissioner Steve Poizner has turned down a request to increase basic workers’ compensation insurance premiums 27.7% starting Jan. 1.”

That’s three rejections in a row from Poizner, who also came out against the recommendation of the industry group Workers’ Compensation Insurance Rating Bureau in 2009, when the group called for a 30 per cent hike for 2010.

Action not binding

However, Poizner’s action is not binding and another group has announced its own rate hike, albeit not as large as the other proposals: “Poizner’s action is merely advisory because the California Department of Insurance does not set workers’ comp rates. California’s largest workers’ comp insurer, the State Compensation Fund, has already announced that it will raise its overall rates 5.2% as of Jan. 1. The fund raised its premiums an average 5% in 2010.”

Cost saving measures ignored, says Poizner

In a Nov. 19 post at the Los Angeles Business Journal, Poizner indicated the insurance companies still have not implemented cost-cutting measures passed several years ago: “While acknowledging that medical costs for workers’ compensation claims are rising, Poizner said insurance companies have not implemented many of the cost-saving measures in the 2004 reforms passed by Gov. Arnold Schwarzenegger and the Legislature.

“ ‘Once again, workers’ compensation insurers have failed to demonstrate that they have adopted procedures to control costs or that they are operating efficiently,’ Poizner said. ‘It’s easier for the insurers to get together and argue that they need huge rate increases than for them to do the hard work of implementing cost savings.’

“In recent years, the average rate increase has been 3 to 4 percent, the commissioner’s office said.”

Some out-of-state businesses see eased requirements in New York

A Nov. 30 post at Insurance Journal says, “New York has eased some workers’ compensation insurance requirements for out-of-state businesses that do only occasional, non-construction work in the Empire State.

“The rule change comes after years of lobbying by agents and their trade groups in the state.”

Board lists findings in bulletin

A Nov. 22 bulletin from the state Workers’ Compensation Board lists its findings, saying that “the Board will only exercise its enforcement power in regard to the acquisition of such full statutory coverage for New York State against an out-of-state employer that meets any of the following criteria:

  • The employer (as defined in the WCL) is required to register with the NYS Department of Labor and pay Unemployment Insurance for any period in question.
  • The employer has a permanent physical location in New York or has employees whose primary work location is here.
  • The employer is operating in New York under a permit, contract, or license granted by the State of New York, its counties or any municipality as defined under §57 of the Workers’ Compensation Law.
  • The employer is working as a contractor/general contractor/subcontractor on a construction project in New York.
  • In the previous year, the employer had employees physically in New York for at least 40 hours of every week for a period of longer than 2 consecutive weeks or had employees present in New York for 25 or more individual days (e.g.- 5 employees working for 5 days in New York equals 25 individual employee days). Employees traveling through the State not stopping for deliveries, pick-ups, or other work are not deemed to have worked a day here. An employer that has reason to know that it will meet these criteria in the current year, even if it has not done so in the prior year, must obtain the required coverage.”

The bulletin seem to leave the board an out, if necessary: “Upon inquiry by the Board as to an employer’s status, it is the employer’s responsibility to attest to the fact that they meet none of these conditions in order to avoid enforcement actions. In the event penalties are issued by the Board, it is the employer’s responsibility to provide documentation to the Board that none of the above conditions were met in order to have a penalty rescinded.”

***********************************************************************************************************************
Frequently enough, a worker’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

Texas workers’ comp agency cited for serious flaws in state audit report

[Continued from: South Carolina’s workers’ comp agency has more problems than delayed deposits of fines]

Besides the problems revealed by a state agency’s audit of the South Carolina workers’ comp system, a similar audit has revealed problems in the Texas worker’s comp system.

According to a Nov. 24 account at The Lone Star Report, the bottom line is that the problems revealed in the report by the State Auditor’s Office (TSAO)is that Texas employers who pay for workers’ comp insurance may be subsidizing a system that pays for unnecessary treatments, thereby siphoning off money that could be used to create more jobs:

On this the day before Thanksgiving, the State Auditor’s Office has dropped a highly critical report on the Texas Department of Insurance’s Division of Workers’ Compensation. The report finds that the division maintains unreliable information and has weaknesses in complaint processing, the medical quality review process, and the enforcement and sanction process.

Those problems increase the risk of injured workers receiving unnecessary medical procedures and overutilization within the workers’ compensation system, the report finds. In other words, Texas employers that pay for the workers’ compensation system are at risk of paying for a lot of unnecessary stuff, which will hinder their ability to keep Texas creating more jobs.

Auditors unable to determine appropriate disciplinary action

However, another Nov. 24 report, in the Fort Worth Star-Telegram, says the audit reveals a system so shoddy that “that auditors couldn’t determine whether the department took appropriate disciplinary action for providers that committed violations.”

The Star-Telegram report does point out that “overutilization”  may be a result but also outlines findings of pervasive “weaknesses in enforcement, information reliability, medical quality review and complaint processing.”

To be sure, the warning about the potential for “unnecessary procedures” and “overutilization” derives straight from the opening section of TSAO’s summary of the report, entitled “An Audit Report on Medical Quality Reviews at the Division of Workers’ Compensation within the Texas Department of Insurance”:

Overall Conclusion

Significant process and information issues at the Division of Workers’ Compensation (DWC) within the Texas Department of Insurance (TDI) significantly inhibit DWC’s ability to monitor the quality of health care in the workers’ compensation system. The issues are in four primary areas:

- Unreliable information.

- Weaknesses in complaint processing.

- Weaknesses in the medical quality review process.

- Weaknesses in the enforcement and sanction process.

These issues increase the risk of (1) injured workers receiving unnecessary medical procedures and (2) overutilization within the workers’ compensation system.

Carriers not part of the audit

However, one wonders about the potential for under-served injured workers, too. With all these weakness being identified, what about enforcement actions and sanctions involving carriers that deny treatments or even entire claims? We’ve covered previous hearings and audits that found problems with enforcement cases, employer actions, and incomplete case logs and reviews.

Another question arises: who’s reporting unnecessary medical procedures? After all, how many injured people are likely to resent too much care or treatment?

However, as the title indicates, the focus of this report is the medical review process. As such, it is described as “Phase II” of the audit; the Phase I audit report can be found here.

Two different systems

Commenting on the DWC’s failure to maintain “complete information,” the TSAO report found that until January 2010, the agency “recorded complaints that the Office of the Medical Advisor investigated related to workers’ compensation providers in two different systems, neither of which contained complete or accurate information.” Furthermore, the agency is inconsistent in tracking medical quality reviews and enforcement actions, “and neither system contains complete or accurate information.”

Inconsistent information

The conclusion to that section suggests the possibility Texas workers’ comp medical providers may receive inconsistent information from the state:

The extent and significance of the incomplete information impaired the State Auditor’s Office’s ability to form a conclusion on the audit objective to determine whether TDI issues appropriate and consistent disciplinary orders for workers’ compensation providers that have committed violations or are identified as noncompliant. TDI and DWC will need to implement significant corrective action to establish and maintain complete and reliable complaint and medical quality review information necessary to carry out their responsibilities.

Agency agreed with all recommendations

Of 21 specific recommendations made by TSAO in five separate areas of concerns, the workers’ comp agency agreed with each of TSAO’s recommended changes.

As part of its conclusion, in the Appendices, TSAO wrote:

The State Auditor’s Office determined that the information DWC maintains on its reviews of workers’ compensation cases in its Tracker system was not reliable for the purposes of making a conclusion on the audit objective to determine whether TDI issues appropriate and consistent disciplinary orders for workers’ compensation providers and carriers that have committed violations or are identified as noncompliant. To assess the reliability of the case review information in the Tracker system, auditors conducted interviews with DWC staff and performed analysis on and observed fields within the Tracker system. The results of those tests indicated that information in the Tracker system was not reliable.  DWC does not update that system consistently, and it does not enter information into that system for all medical quality reviews.

***********************************************************************************************************************
Frequently enough, a worker’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

South Carolina’s workers’ comp agency has more problems than delayed deposits of fines

In South Carolina, an audit has revealed that the state’s workers’ compensation authority has broken state law by not delaying deposits of nearly a quarter-million dollars in fines. In Texas, a report issued by the state auditor’s office has slammed the workers’ comp division for significant inability to “monitor the quality of health care in the workers’ compensation system.”

According to a Nov. 24 piece at Businessweek.com, “The state’s Workers’ Compensation Commission broke state law by not depositing fines as it worried legislators would use the money for something else, according to an audit released Tuesday.

“The commission collected but delayed for weeks depositing $244,000, the Legislative Audit Council [LAC] said in its report.”

Commission tried to protect funds from General Assembly

According to the summary of the council’s report, “The Commission took this action so that, in the event the General Assembly prohibited agencies from keeping their unexpended funds at the end of the fiscal year, the Commission would not have these funds for the General Assembly to take away. We notified management of this violation and the agency ceased the practice and deposited the checks immediately.”

A Nov. 25 video clip of a local news broadcast summarizes the situation about the delayed deposits. The problem is, such summaries may be overlooking deeper issues.

Bigger problems cited

In noting its reaction to LAC’s report, this Nov. 23 post at FitsNews.com says the state’s workers’ comp system has bigger problems that undeposited checks: “Unfortunately, the LAC report ignores the root problem at the agency – outlandish judgments based on arbitrary guidelines that drive premiums up for our state’s small businesses and diminish our ability to compete.

“ ‘We did not examine the amount attorneys may charge claimants in South Carolina as compared to other states,” the report notes. ‘Also, we did not compare the method of determining disability in this state, including the use of American Medical Association impairment ratings, to those in other states.’

“The adoption of AMA guidelines has been a sticking point in the ongoing debate over South Carolina’s workers’ compensation system – a debate that seems to be revisited almost every year because state lawmakers refuse to enact these long-overdue reforms.”

Commission’s response to council’s findings mixed

Although the commission agreed with LAC in its response to the delayed deposits issue–the responses are included in the report–it took exceptions to other issues. For example, LAC says state regulation “67-202.A.(12) defines the Commission’s public affairs (formerly public assistance) division as the division responsible for responding to the general inquiries of employees and employers concerning their rights, benefits, and obligations under the workers’ compensation act. Also, in FY 05-06, the General Assembly specifically funded a new position for an ombudsman.”

LAC says the commission did have one employee assigned to this function, but “as of July 2010, there was no division nor employee whose duties were specifically to act in these capacities” and recommended that the commission appoint an ombudsman/public affairs officer.

‘No specific requirements’

In its response, the commission says, “The regulations contain no specific requirements for the Commission to fund the Public Affairs Division or ombudsman position. Section 42-3-90 of the S. C. Code of Laws establishes three divisions with the Commission’s Administrative Department. The statute does not include a requirement for a Public Affairs Division. In FY 05-06 the General Assembly approved funding for the position of ombudsman however for FY 08-09 and FY 09-10 the General Assembly reduced the Commission’s budget by 30.5%.”

So, after layoffs, the commission says, the executive director assumed the ombudsman duties and the commission remains committed to fulfilling those duties.

Specific problem areas

In all, LAC found problems–and  made nine specific recommendations (including the delayed deposits)– pertaining to:

  • improving methods of identifying uninsured employers and collecting fines
  • improving referral of  claimants to vocational rehabilitation
  • removing inconsistencies and improving efficiency of the informal conference process.

LAC found no “significant issues” with contested case files.

In its response, the commission deflects the need for adding a compliance officer and says it will review and seek to raise benchmarks for current officers–in other words, get more out of the existing staff, in attempt to collect more fines and bring more employers into compliance.

Regarding the need for increased efficiency and developing a memo of understanding with the vocational rehab agency, the commission agreed and assured LAC that such procedures are underway.

As as far improving consistency among informal conferences, Interim Chairman Beck wrote, “The Commission recognizes the need for consistency in the informal conference process and will develop a training program for claims mediators to address this.”

Commission disagrees with more documentation of facts during informal conferences

However, the commission disagreed with LAC’s recommendations that the informal hearings contain more documentation about “each settlement to ensure that the parties are notified of their rights at informal conferences” and which “information was considered for the proposed settlement.”

The commission  agreed with implementing “a checklist” to ensure parties are notified of rights but disagreed about documenting the medical facts of a proposed settlement, reasoning that each case is unique and, besides, if a case escalates beyond the informal hearing, the documentation is required: “The Commission’s role in this process is to ensure any agreement is within the provisions of the statute and regulations. If no agreement is reached, the matter is set for a hearing before the jurisdictional Commissioner. Because each case is individual and unique and the conference is held as an opportunity to reach an agreement between the parties, we see no rational basis for imposing requirements to document justification for the settlement.”

To be continued: The Texas situation.

***********************************************************************************************************************
Frequently enough, a worker’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

From over-the-top to routine, workers’ comp fraud a dangerous game to play

We cover workers’ comp fraud from all angles. Sometimes the point is to help workers be alert to scams that employers may try to pull on injured workers. Sometimes the point is to remind everybody that workers’ comp law can be minefield for people who don’t have a competent, experienced attorney. Sometimes the point is that workers who scam the system can get in big trouble, too.

Earlier this month, the San Francisco Chronicle ran a short piece about a big scam.

‘One of the largest cases in California history’

“A Laguna Hills roofing contractor has been sentenced to 10 years in state prison,” says the Chronicle, “in what prosecutors are calling one of the largest workers compensation insurance fraud cases in California history.”

According to the Los Angeles Wave, “Michael Vincent Petronella was also ordered to pay $500,000 in restitution and a $500,000 fine, amounts that prosecutors said were far too low, given that he had committed a fraud that they said netted between $11 million and $35 million.

“A jury found Petronella guilty Feb. 11 of 33 felony counts of insurance fraud with a sentencing enhancement for aggravated white-collar crime of more than $500,000.”

Under-reporting payroll

The Chronicle account says prosecutors described a scam that Petronella and his wife, Devon Lynn Kile, began in 2000 by taking out workers’ comp insurance “for their multiple companies” and subsequently turning in 42 fraudulent claims for workers who were not insured, meanwhile failing to report $29 million worth of payroll in an attempt to avoid paying premiums. “The scheme,” says the Chronicle, “resulted in the state incurring more than $253,000 in uncovered injured worker claims and insurance premium losses in the millions.”

According to the account in the Wave, the scheme was so complicated that “Orange County Superior Court Judge Richard King held hearings all . . . week to determine what restitution Petronella would have to pay his victims and what punishment he deserved.”

A ‘defiant’ defendant

The demeanor of his co-defendant wife is not mentioned in either piece, but according to the Wave Petronella was not only not remorseful but also bitterly challenging.

A defiant Petronella, at times raising his voice, angrily blamed State Compensation Insurance Fund officials for his dilemma. He claimed he was a “safety nut,” and received awards for job safety from regulators and that the insurance fund officials had the responsibility to bring the discrepancies to his attention.

“We had a safe working environment and they didn’t reward us for it,” Petronella said. “They punish you for getting around the insurance laws they try to ram down your throat… You’re in a hostage situation. It’s either their way or the highway. They won’t spend 15 minutes to help you understand their business.”

Petronella’s attorney said the man did not report to proper number of employees in an effort to make up for what he considered “inflated insurance premiums.” However, doing so caught up with the couple because the number of claimed injuries attracted attention based on reporting too-few employees.

The wife is due to be sentenced soon but is expected to angle for a plea deal, presumably for having a smaller role in the scheme, which came to light in 2006 when a worker fell from a roof. He was listed as an employee of one of Petronella’s businesses–but was not covered by workers’ comp. The couple were arrested in 2009.

Home repairman faces four years

A less flamboyant case reminds us that even “run-of-the-mill” workers’ comp fraud can result in serious jail time.

A Nov. 5 press release from the New York State Insurance Department says, “A Sullivan County man accused of running a home repair and painting business while collecting workers’ compensation benefits was arrested Wednesday, the New York State Insurance Department reported.

“State police arrested Homer Spangler, 54, of Kenoza Lake, following an investigation by the Insurance Department’s Frauds Bureau.”

So, yes, the authorities really do have investigators who go out and check up on this stuff.

A re-post at workcompwire.com says, “Spangler is accused of fraudulently accepting $7,470 in benefits after submitting documents to the New York State Insurance Fund falsely stating that he was physically unable to work.

Caught by routine check up

“An investigation was begun after Spangler was discovered running his own business last October during a routine check by the Insurance Fund. He started collecting permanent partial disability benefits after suffering a job-related injury in 1988 while working for a glass company.”

After arraignment, Spangler was released on his own recognizance–but he faces up to four years in prison for the two felony charges, “workers’ compensation fraud and offering a false instrument for filing.”

***********************************************************************************************************************
Frequently enough, a worker’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

After voters deny I-1082 in Washington, L&I announces increase in workers’ compensation rates

One of the most closely watched workers’ comp contests in the recent elections was on the ballot in Washington State: Initiative 1082, commonly referred to as a business-backed “measure that,” according to a Nov. 3 post at BusinessInsurance.com, “would have allowed private insurers to compete for employers’ business in the state’s workers compensation system.

“More than 58% of voters on Tuesday rejected Initiative Measure 1082, according to the Washington Secretary of State’s office. Washington is among four U.S. states that have a monopoly workers comp system.

“The Building Industry Assn. of Washington, along with insurance industry support, sought to end the Department of Labor and Industries’ [L&I] monopoly. Organized labor and trial lawyers opposed the initiative.

“The measure would have eliminated a Washington practice of requiring workers to pay a portion of workers comp premiums as well as allowed private insurers to sell policies.”

L&I announces average 12 per cent premium increase

About a week later, L&I announced a temporary rate hike averaging 12 per cent, making it seem pretty cut-and-dried that following a period of public discussion the increases will become permanent. In the Nov. 8 announcement, L&I stated: “The Department of Labor & Industries . . . today announced a 12 percent average increase in workers’ compensation insurance premiums. Average premiums would go up by 6.5 cents per hour worked.

“The new rates take effect Jan. 1, 2011, under an emergency rule that is effective for 120 days. L&I will hold public hearings in January to gather comments about the proposed increase before adopting permanent rates.”

Next stop for proponents: the Legislature

Proponents of I-1082 campaigned on the promise of cheaper rates by allowing private insurers to compete with the state-run program. Although disappointed, at least some vow to continue the long-running battle with a legislative approach in 2011.

According to a Nov. 3 Bloomberg Businessweek article, “Initiative supporters argued competition could reduce costs for employers in a time of great economic uncertainty.

“Kris Tefft of the Association of Washington Business said the results were disappointing and that business groups would try to reform workers’ comp through the Legislature next year.”

Increases not uniform, vary by sector

According to the Pugent Sound Business Journal, the rate hikes are not uniform across industries: “The emergency measure was necessary, L&I officials said, after changes were delayed due to the election; Washington state voters were asked whether they wanted to change the existing workers’ compensation system and voted down Initiative 1082.

” ‘I think it shows it was difficult to break down to voters what was at stake in Initiative 1082,’ Tefft said.”

“Some industries would pay more than others. Building construction and trades will see a 16 percent increase while restaurants will see a 6 percent hike.”

Background, perspective, and workers’ share of costs

A Nov. 10 piece at InsuranceJournal.com quotes L&I Director Judy Schurke in providing some background on the state’s situation, while placing it context of nationwide factors. It also says some employers might even see premium costs fall, and that workers are expected to pay about 24 per cent of the costs:

Every year in Washington, more than 100,000 claims are filed for medical costs and lost wages due to work-related injuries, illnesses and deaths. Each year, L&I must review premium rates and make adjustments to cover the anticipated costs of claims that will be filed in the next year, [Schurke] explained.

“We’ve taken many steps to reduce costs in our claims-management process, such as keeping prescription drug costs to less than half of the national average. But it isn’t enough to overcome the negative impact of the economy,” Schurke added.

The same economic factors that affect workers’ compensation insurers nationwide are impacting Washington’s State Fund:

  • Injured workers are staying on benefits longer because there are fewer jobs.
  • Less money is coming into the system because of fewer work hours.
  • Medical costs and wages are up.
  • Investment earnings are down.

The increase is an average for all Washington employers. Individual employers could see their rates go up or down, depending on their recent claims history and any changes in the frequency and cost of claims in their industry. L&I has published a rate table online and will soon send all employers a rate notice.

Washington is the only state where workers pay a substantial portion of premiums, about 24 percent of the 2011 proposed rate.


Opponents fought reduced payments by workers in nearly 100-year-old system

The winning side had campaigned on the idea that opening the door to private insurance competition would endanger a system that has been operated by the state since the early 20th Century. According to the Businessweek piece: “Opponents of the initiative said it would be a mistake to let profit-driven insurance companies into the workers’ comp market, which has been run under a public system in Washington since 1911. They also said that the estimated $315 million per year in reduced payments by workers would shift higher costs to employers.

” ‘It’s great feeling. It was a long and hard campaign but our main goal was for voters to read the fine print and see it would tax small businesses and hurt families,’ said Alex Fryer, spokesman for the initiative’s opposition. ‘It’s heartening to see voters rejected 1082 so forcefully.’ ”

***********************************************************************************************************************
Frequently enough, a worker’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

Off-duty rescue personnel face tough choices when deciding to respond

Writing Nov.1 in the online edition of The Albuquerque Journal, Judge Alan M. Malott raises a question that we have explored before. In fact, we discussed one of the cases here, that of the widow of police officer Kevin Schulz, who was off duty when he drowned during the rescue of a 12-year-old boy.

This opinion piece at ABQJournal.com asks the question “How much is required of off-duty first responders?”

The first case it mentions is that of an off-duty police officer who declined to get involved in a domestic dispute which left a woman dead, killed by a former boyfriend.  Tragic, to be sure, but no workers’ comp questions are involved.

The next case mentioned is that of Schulz and his widow, who is still fighting for workers’ comp benefits from the 2002 drowning accident.

Case goes back to appellate court

“The other case involved an off-duty officer who jumped into the Rio Grande to save a drowning child. He saved that child, but drowned himself. The workers’ compensation insurer denied benefits to his widow and family on the grounds that the officer was off duty, so his death was not work related. That position was upheld before the Workers’ Compensation Administration and the case is now in our Court of Appeals after the state Supreme Court ruled on a technical matter earlier this year.”

The judge mentions the widespread attention both cases received then says that one argument is that “an off-duty officer has no responsibility to act in an emergency and, if they do so to their peril, the consequences will not be covered by workers’ compensation because that system is not designed or intended to reward meritorious conduct.”

We’ve covered similar arguments regarding volunteer firefighters here, involving a case in which the ruling was that the rescuer needed to be alerted through proper channels before responding, and here, a case which affects not only  VFDs  in much of West Virginia but also many homeowners’ insurance rates.

‘Off the clock’?

Judge Malott also brings up the “other argument” that’s always tied to first-responders whom society expects to react as trained professionals, regardless of the situation: “But are police and emergency personnel ever really ‘off the clock’ if faced with an emergency? The answer depends upon the public policy we seek to effect.”

The next paragraph is so thoughtful, perhaps indicative of the judge’s experience in jurisprudence, that we’re breaking out each of his sentences as single, independent  thinking-points:

  • Workers’ compensation is a complicated area of law, and represents a legislative compromise between common-law concepts of negligence and the social need for a relatively quick and inexpensive means of protecting citizens who are injured on the job.
  • The employer is shielded from responsibility for pain and suffering and other traditional damages while the employee is not faced with a lengthy court battle over traditional defenses to an injury claim and has access to prompt medical care.
  • Like every compromise, there are times workers’ compensation looks better on paper than in everyday life.
  • Like every legislative system, workers’ compensation law should be reviewed now and then to see if it’s in accord with the needs and policies of our society.

Woman attacked en route to parking spot

Following those cogent points, the judge brings up a case of female worker who got attacked on her way from the office to her assigned parking spot. As he writes, the denial of benefits was based on the idea that “she had technically left her job duties before the attack.”

Here’s the excerpt:

Not so very long ago, an employee who was attacked while walking to her assigned parking space was denied workers’ compensation benefits because she had technically left her job duties before the attack. On appeal, that decision was overturned because the employee was going to an assigned parking space and was where her employment required her to be when injured. Many other cases have addressed the scope of the phrase “on the job” to reflect the realities of the marketplace and the wide range of job requirements we all face daily.

So the appeals court got it right. That time. But we’ve also seen cases in which the carrier tried to contest the case when a clocked-out employee was injured by a fall while going to the restroom. And state law in Florida protects employees one the way to and from work. Unfortunately, laws are not consistent among the various states, which makes another good reason to retain an experienced, trained attorney to handle the vagaries of workers’ comp law.

What kind of system do we want?

As for emergency workers, the judge sums it up this way:

So, do we want a workers’ compensation system that recognizes the actual risks, and responsibilities we put on those licensed to protect us, or one that discourages them from considering a lifesaving function until they check their schedule for the week? Is the focus best placed on those who protect us in the worst of circumstances, or employers and their insurance companies? There are many opinions. I have one, too. But you can Judge for Yourself.

***********************************************************************************************************************
Frequently enough, a worker’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