Monthly Archives: March 2011

NFL loses again: injured Redskins’ punter wins workers’ comp benefits

When relocating, businesses consider many factors, including workers’ comp premiums

Punter’s benefits award overturns longstanding precept

We’ve covered workers’ comp issues in the NFL before, most recently in a piece last month, but the main issue before has been players who file for workers’ comp benefits in the state where they were injured rather than in team’s home state. They do so because the “away-state” offers better benefits than the “home-state.”

Now another issue has arisen, in the case of a former punter for the Washington Redskins. A recent court decision has upended 30 years’ of NFL and legal tradition.

According to a March 10 press release, “Former Washington Redskins punter Thomas Tupa, who suffered a career-ending back injury while warming up for a preseason game in 2005, is eligible to receive workers’ compensation under Maryland law, the state’s court ruled Feb. 28, 2011. Attorneys Benjamin T. Boscolo and Gerry Herz of ChasenBoscolo Injury Lawyers represented Tupa in this landmark case. (No. 09-1839, Pro Football Inc. v. Thomas Tupa, Maryland Court of Special Appeals).

” ‘For almost 30 years, the Court ruled injuries suffered by NFL players were not accidental injuries, stating professional football players were not entitled to receive workers’ compensation benefits because they assumed the risk of such injuries,’ said Boscolo, who has been handling the firm’s sports-related cases since 2000. ‘The Court’s recent decision overturned this longstanding precedent as being contrary to the very purpose of the Maryland Workers’ Compensation Act.’ ”

Venue of game re-appeared, as side issue

The other issue, that is, where games are played, did arise during the process, as the case bounced from commission hearings to county court to appellate court. According to a March 5 article in the Washington Examiner:

Tupa in 2007 originally filed a claim with the Maryland Workers’ Compensation Commission requesting benefits, the documents state. The Redskins were ordered by the commission to pay partial disability as well as medical expenses.

When the team appealed the decision, court documents show that the NFL team argued that Maryland didn’t have the jurisdiction to award Tupa workers’ compensation because he was hired to play in Virginia, where the team’s headquarters and practice field are located.

But the appeals court was not swayed, pointing out that game days are in Maryland: “It is clear that the purpose of Tupa’s employment was to play in games, not to practice.”

Appellate court agreed with county court

A March 10 post at a trade Web site, Injury Board says that “Tupa claimed to have hurt his back warming up at FedEx Field in 2005. The Maryland Court of Appeals upheld a 2009 Prince George’s County Circuit Court jury’s award to Tupa, who says he injured his lower back before a Redskins preseason game at the team’s Landover stadium. Pro-Football Inc., the corporation that operates the Washington Redskins, appealed the jury award by arguing that there’s no connection between Tupa’s 2005 injury and any ongoing disability he still claims.

“Tupa has not played football since hurting his back; the punter has testified that he still needs back surgery. “It is undisputed that he is physically unable to punt in the NFL,” the appeals court wrote. Court records state that the Prince George’s County jury awarded Tupa just over a year’s worth of disability benefits.”

I have a sneaking feeling that all these workers’ comp issues will be addressed in whatever agreement finally ensues from the current battle between the NFL owners and players.

Back to the regular world…

Rhode Island AG fights to rein in workers’ comp premiums

All states and local governments compete for new business, in one way or another. Most want growth–even if their natural resources can’t sustain it–and all need revenue. An undeniable factor in the mix for businesses choosing to relocate is a given state’s cost of workers’ comp premiums.

The Great Recession has affected not only the disability network but also workers’ comp.

We posted the following in September 2010: “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.”

A March 11 post at Insurance Journal says, “Rhode Island Attorney General Peter F. Kilmartin said he opposed a 3.9 percent workers’ comp rate hike being sought by the National Council on Compensation Insurance (NCCI) for the state.

“NCCI’s calculations call for a 3.9 percent increase for advisory loss costs for workers’ compensation insurance. But Kilmartin says that an analysis and an independent actuarial study, the rate hike should be rejected. Kilmartin’s office submitted an alternative calculation that calls for an overall increase of 0.6 percent.”

About a week earlier, Business Insurance posted, “Among other problems, the attorney general said Wednesday that the Boca Raton, Fla.-based workers comp rating organization applied an excessive medical trend factor to arrive at its suggested loss-cost rate increase.

“Instead, Mr. Kilmartin said, a 0.6% rate decrease is in order for Rhode Island businesses.”

100-year anniversary of tragic fire that fueled adoption of workers’ comp

PBS special and an ASSE book recount disaster that drew attention to workplace safety

You don’t have to know what a shirtwaist is (see the link at the end) to be interested in the 100-year anniversary of a tragic fire in New York that is said to have helped drive the beginnings of the mandatory workers’ comp system in the United States.

1911 fire killed 146 workers

According to a post at Business Insurance, “The PBS American Experience documentary on the Triangle [Shirt]Waist Factory fire that killed 146 people, mostly young immigrant women, is well worth watching, a spokeswoman for a comp insurer tells me.

“The 1911 fire is credited with being among the forces that helped launch mandatory workers compensation systems in the United States. This year marks the 100th anniversary of the fire and the birth of U.S. work comp systems.”

‘Deadliest workplace accident in New York’s history’

According to this PBS: American Experience page, “It was the deadliest workplace accident in New York City’s history. On March 25th, 1911, a deadly fire broke out in the Triangle Shirtwaist Factory in New York’s Greenwich Village. The blaze ripped through the congested loft as petrified workers–mostly young immigrant women–desperately tried to make their way downstairs. By the time the fire burned itself out, 146 people were dead. All but 17 of the dead were women and nearly half were teenagers.”

13-hour workdays, at 13 cents an hour

Not only were most of the workers immigrants but so were the owners, who paid workers 13 cents an hour–for a 13-hour workday–while they lived in luxury. “Two men who had achieved the dream were the wealthy owners of the thriving Triangle [Shirtwaist] factory. Isaac Harris and Max Blanck, immigrants who had arrived from Russia only 20 years earlier, had become known as New York’s ‘Shirtwaist Kings,’ and each owned fully staffed brownstones on Manhattan’s Upper West Side.”

Some condition improved–but not enough

After “what became the largest women’s strike in American history” and gaining support from wealthy grand dames of society such as “Anne Morgan, the daughter of J.P. Morgan,” the owners relented–somewhat:


After the strike had continued for 11 weeks, the Triangle owners finally agreed to higher wages and shorter hours. But they drew the line at a union. Back on the job, the Triangle workers still lacked real power to improve the worst conditions of the factory floor: inadequate ventilation, lack of safety precautions and fire drills–and locked doors.

When a tossed match or lit cigarette ignited a fire on the eighth floor of the building, flames spread quickly. Blanck and Harris received warning by phone and escaped, but the 240 workers on the ninth floor continued stitching, oblivious to the flames gathering force on the floor below. When they finally did see the smoke, the women panicked. Some rushed toward the open stairwell, but columns of flames already blocked their path.

A few workers managed to cram onto the elevator while others ran down an inadequate fire escape, which crumbled under the weight, crashing to the ground almost 100 feet below. The only remaining exit was a door that had been locked to prevent theft. The key was tucked into the pocket of the foreman, who listened to the women’s cries for help from the street. Hundreds of horrified onlookers arrived just in time to see young men and women jumping from the windows, framed by flames.

Immense public reaction

The next thing to ignite was public opinion: “The ensuing public outrage forced government action. Within three years, more than 36 new state laws had passed regulating fire safety and the quality of workplace conditions. The landmark legislation gave New Yorkers the most comprehensive workplace safety laws in the country and became a model for the nation.”

Follow-up resources

If you’re interested, be alert to your local PBS schedule for the next broadcast, or you can order the DVD here.

There’s also an interesting 100-year timeline of significant workplace events here assembled by the same people, the American Society of Safety Engineers, who produced this book, entitled “Triangle: The fire That Changed America.”

Oh, and a “shirtwaist”? That’s explained here.

Study questions narcotics’ usage in California workers’ comp system

CWIC report contains troubling implications for rest of the nation

Some injured workers in California–and perhaps nationwide–may be over-prescribed with powerful painkillers, according to a new study by the California Workers’ Compensation Institute.  And, apparently, a relative few doctors account for the bulk of the prescriptions. The March 7 report, “Prescribing Patterns of Schedule II Opioids in California Workers’ Compensation”  can be downloaded at this page on the CWCI site.

“3 per cent of doctors’ write more than half the scrips

According to a March 11 article in the San Francisco Chronicle, “Just 3 percent of doctors who treat workers’ compensation patients in California are responsible for writing more than half the prescriptions for the most potent and addictive pain medications, a study released this week said.

“Those doctors ordered such drugs as morphine and oxycodone in higher doses than other workers’ comp doctors and prescribed the medications for minor back pain or other conditions that may not have required such strong treatment, according to the study . . . .”

‘Minor back injury claims’ account for ‘nearly half of the prescriptions’

Reporting that “nearly half of the prescriptions are for minor back injury claims,” a March 11 Claims Journal piece goes on to say  that the study “indicates that 3 percent of the prescribing physicians accounted for 55 percent of all Schedule II prescriptions, 62 percent of all morphine equivalents and 65 percent of all associated payments in the study sample. Furthermore, the top 10 percent of injured workers receiving Schedule II morphine equivalents obtained their prescriptions from an average of 3.3 different physicians, compared to an average of 1.9 doctors for all claims.

“The average levels of morphine equivalents per claim are consistent with an increased risk for overdose and addiction, CWCI said.”

National report finds ‘15.1 million Americans’ reporting abuse of prescription drugs

In the Background portion of the study itself, the following passage lays out some of the national implications:

A recent report by the National Center on Addiction and Substance Abuse at Columbia University found that 15.1 million Americans, more than 6 percent of this country’s adult population, admit to abusing prescription drugs — more than all other forms of drug abuse combined. Furthermore, the study noted that between 1998 and 2008, hospitals nationwide reported a 400 percent increase in admissions related to prescription narcotic abuse and a 200 percent increase in prescription narcotic deaths. While the use of all prescription medications rose 61 percent during that time, the use of Schedule II opioids, which include Oxycodone, Fentanyl Citrate, Morphine, Methadone, Hydromorphone and Oxymorphone, increased by 380 percent. In addition, a 2011 report by the Center for Disease Control and Prevention noted that in 2007, drug-induced deaths had become more common than alcohol-induced or firearm- related deaths in the United States, that the increase in drug abuse and related deaths was associated with “prescription opioid painkillers and psychotherapeutic drugs being prescribed more widely by physicians,” and that these drugs had “supplanted illicit drugs as the leading cause of drug-related overdose deaths.”

Schedule II drugs linked to several problems

Perhaps even more troubling, the study cites “a recent report from The Department of Health and Human Services Office of the Inspector General” that outlines other concerns, along with yet another from the General Accounting Office:

Schedule II drugs have a high potential for abuse, have an accepted medical use with severe restrictions, and may cause severe psychological or physical dependence if abused.” Similarly, a recent General Accounting Office (GAO) analysis found that all of the states that it had observed lacked a comprehensive fraud prevention framework for controlled substances, and recommended that the Centers for Medicare and Medicaid Services (CMS) issue guidance to states for improved oversight of controlled substances in Medicaid. The GAO report also noted additional areas of abuse, including physician-prescribed controlled substances in excess of medical need, and patient sale of the drugs “on the street.” Recently, the increasing supply and demand curve for Schedule II opioids has been associated with the rise of criminal activity at the point of service, as pharmacies have reported a sharp increase in Schedule II opioid related armed robberies.”

Increasing cost of these drugs parallels increased usage

So the problem potentially greatly exceeds the nation’s various workers’ compensation program. But the chief worries from strictly a workers’ comp perspective are considerable. Not only have these drugs rates of prescription increased at an alarming rate since 2005 but also their costs have gone up, contributing significantly to systemic cost increases at a time when states are hard pressed to fulfill public needs.

Overuse can degrade recovery time for injured workers

Perhaps most important is the threat to injured workers themselves:

These results are consistent with Webster’s findings linking a high incidence of opioid use with a greater number of lost-time days for occupational low back pain and add to a growing body of scientific literature suggesting that:

  1. at higher levels of use, opioids can adversely impact an injured worker’s activity level and sense of self-efficacy; and
  2. prolonged administration of narcotic pain medications may impede, rather than facilitate, an injured worker’s recovery from occupational back injuries.

Increased litigation also a possibility

Then, of course, there’s always the threat of lawsuits: an injured worker who learns pain killers made an injury worse just may be a an injured worker who turns to litigation. Potentially it’s a spiral of loss, with an injured worker not working, the system paying for ever more costly drugs that are making the injury worse, plus the worker’s not getting better. It’s certainly something to watch and be aware of.

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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

Oklahoma Senate shoots ‘reform bill’ to House on 44-0 vote; Illinois scandal widens after House approves audit

GOP-sponsored bill gets full support of Democrats

We’re getting some mixed signals out of Oklahoma regarding the state’s ongoing efforts at reform of its workers’ compensation system. According to a March 11 piece in the Tulsa World, “Critics of a highly touted Republican-sponsored measure billed as workers compensation reform say it could reduce injured workers’ access to medical care.

“Senate Bill 878 passed the Senate on Thursday by a vote of 44-0 with no debate. It heads to the House.

“It would reduce what doctors are paid to treat injured workers by tying rates to 120 percent of Medicare.

“Treatment would be controlled by the Official Disability Guidelines for workers compensation.”

Yet, elsewhere the vote is labeled heavily bipartisan;  the Oklahoma Senate Web site lists 16 Democrats and 33 Republicans.

Highlights of the proposed changes

Tulsa Today says, “A summary of major provisions in the bill include:

• “Swift resolution to cases, requiring the judge to render decision within 60 days
• “Mandatory annual reviews of disability recipients
• “Creates transparency within the court, requiring reports on the judicial process
• “Places more decision making authority in the hands of medical experts
• “Encourage early return to work through rehabilitation.”

Medical providers leery of price caps, interference with doctors

Apparently, the major critics are medical providers; according to the Tulsa World, the Oklahoma State Medical Association has said via a spokesperson that it “has concerns about the rates and guidelines” and opposes the bill as currently written.

The article cites a doctor of occupational medicine who says Medicare doesn’t fully cover costs now and worries that adopting Official Disability Guidelines will limit not only the treatment available from a primary care giver but also access to specialized providers such as orthopedic and neurosurgeons.

The governor has voiced support for the Senate version and encouraged the House to get quickly on board.

Audit OK’d on 111-0 vote

Another story we’ve been following is the workers’ comp scandal in Illinois, where another unanimous vote recently occurred. A March 11 piece at BND.com (for Belleville News-Democrat) says:

The Illinois House voted 111-0 Thursday in favor of a resolution calling for an audit of the Illinois Workers’ Compensation program “as it applies to state employees.”

In an address on the House floor, Rep. Dwight Kay, R-Glen Carbon, who initiated the resolution, spoke of a Belleville News-Democrat investigation into workers’ compensation claims by employees at Menard Correctional Center.

“We have $10 million — $10 million — worth of taxpayers’ money awarded to workers’ compensation claimants, and that consists of 230 employees who have alleged injuries with respect to repetitive trauma from opening key locks on jail doors,” Kay told House members.

Lots of moving parts to this story

As we most recently discussed in February, public outrage over Illinois Workers’ Compensation claims caught fire late last summer when a former state trooper filed for benefits for injuries received when his patrol car jumped the median and sliced through another auto, killing two teen-age sisters. Subsequent coverage by the News-Democrat has revealed highly questionable e-mails and unusually high rates of claims at a correctional facility, plus a seemingly high rate of claims made by employees of the workers’ comp system itself–including arbitrators, two of whom were suspended last month.

Info in hearing officer’s claim said not to be public record

Now, the News-Democrat has uncovered more of what, at least superficially, seems to be additional impropriety. A March 21 piece says:

State hearing officer Kathleen A. Hagan, who recently filed her fourth worker’s compensation claim three days before the deadline, is seeking a settlement for an undisclosed injury.

But the public will not learn — either before or after the claim is settled — how Hagan was injured. The only public reference about her accident on Feb. 13, 2008, is on a state website that simply reads, “knee and leg right.”

That’s because Central Management Services, the large state agency that handles much of Illinois’ state government paperwork, has taken the position that because it is self-insured, virtually all information it receives regarding a claim made under the Illinois Workers’ Compensation Act can be withheld because it is “proprietary.”

Policy changed when CMS took over as lead agency

The article discusses at length the opinions of experts in open records law, providing considerable evidence that CMS is breaking the spirit of the law and perhaps even violates the state constitution. Also discussed is CMS’s having taken over responsibility that used to reside with the Illinois Workers’ Compensation Commission. Before CMS became the lead agency, “the commission generally had been forthcoming with information.”

In trying to track down the root of the policy change, reporters apparently asked an attorney for the Illinois Press Association about it and were told: “Ask the governor.

“Mica Matsoff, a spokeswoman for Gov. Pat Quinn’s office, did not respond to a request for comment.

“In January, a representative of Quinn’s office promised the News-Democrat an exclusive story if it would temporarily hold a workers’ compensation story about potential fraud. The governor later called for an investigation into the workers’ comp system.”

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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 attorney responds to court order with First Amendment lawsuit

There’s plenty of workers’ comp news this week, from a variety of states with different rules and systems. Some are neighbors, some are not. Some are really hard pressed for meaningful, new legislation–others not so much.

Target of cease-and-desist order responds with lawsuit

But perhaps the most interesting is a case in Texas, where existing law is being called into question over Constitutional issues–namely, the First Amendment. I have no clue who “Ima Fish” is, but here’s an excerpt from the first piece I read about an attorney who is suing the state after a receiving a cease-and-desist order:

Ima Fish alerts us to yet another bizarre state law against free speech. John Gibson, a lawyer from Lubbock, Texas, who is an expert in workers’ compensation, is suing the state after it sent him a cease and desist letter for having a blog at TexasWorkersCompLaw.com. It turns out that Texas has a law on the books that forbids workers’ comp lawyers from saying they’re from Texas. Basically, the law forbids the use of “workers comp” and “Texas” together. Gibson, reasonably, finds the whole thing absolutely ridiculous:

Gibson says the words are not the intellectual property of the state, but are in the public domain, that no governmental interest is served by regulating them, and that forbidding their use is an impermissible restraint on free speech.

“For instance, under the terms of the regulation, a physician or medical clinic would be prohibited from advertising that they accept workers’ compensation patients in Texas. Any attorney who was board certified would also be strictly prohibited from using the phrase ‘Board Certified in Workers’ Compensation Law by the Texas Board of Legal Specialization,’ which is the accepted manner and form for disclosing Board Certification in Texas,” the complaint states. “These and other unnecessary restrictions on advertising are the result of § 419.002, without serving any governmental interest.”

Texas Labor Code: Will statute’s wording withstand challenge?

For more background, let’s call up the file entitled Texas Labor Code – Section 419.002. Misuse Of Division’s Name Or Symbols Prohibited at legal Web site onecle.com:

§ 419.002. MISUSE OF DIVISION'S NAME OR SYMBOLS
PROHIBITED.  (a) Except as authorized by law, a person, in
connection with any impersonation, advertisement, solicitation,
business name, business activity, document, product, or service
made or offered by the person regarding workers' compensation
coverage or benefits, may not knowingly use or cause to be used:
		(1)  the words "Texas Department of Insurance,"
"Department of Insurance," "Texas Workers' Compensation," or
"division of workers' compensation";
		(2)  any term using both "Texas" and "Workers'
Compensation" or any term using both "Texas" and "Workers' Comp";
		(3)  the initials "T.D.I.";  or
		(4)  any combination or variation of the words or
initials, or any term deceptively similar to the words or initials,
described by Subdivisions (1)-(3).
	(b)  A person subject to Subsection (a) may not knowingly use
or cause to be used a word, term, or initials described by
Subsection (a) alone or in conjunction with:
		(1)  the state seal or a representation of the state
seal;
		(2)  a picture or map of this state;  or
		(3)  the official logo of the department or the
division or a representation of the department's or division's
logo.

Gibson’s attorney lays it on thick

According to a piece at the ABA Journal Web site, the language of the statute “might be so broad as to include even Gibson’s suit, filed by Lubbock lawyer Robert S. Hogan.

“Hogan doubled down, actually many multiples, and proceeded to use the terms over and over in the complaint to persuade the court, but also, in effect, school the state agency and the state legislature on the ramifications of new provisions added to the law in 2005—but apparently only now strictly enforced. The changes apparently were made to stop deliberately confusing advertisements by insurance companies.”

Further examples of statute’s possible interpretation

Beyond the preceding examples, the suit filed by Lubbock attorney Robert S. Hogan says logical extensions of the state’s position would be that:

• “Legal professionals would be hard-pressed to conduct seminars on the latest decisions by the ‘Texas Workers’ Compensation Commission’ or criticize a ruling by a ‘Texas’ court on a ‘Workers’ Compensation’ case.

• “Candidates for public office cannot discuss in campaign literature or speeches the needs for reforming the ‘Texas Workers’ Compensation’ system.”

***********************************************************************************************************************
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