First of a two-part exam of current USA workers’ comp issues

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We’re taking a two-part look at the various–and varied–news from the sometimes complex world of worker’s comp in the USA. As a worker in the United States, you need to be aware of the workers’ comp laws of your state, and if you travel for work, of the variations that exist among the states. For example, Texas in the main does not require employers to purchase workers’ comp insurance.

Of course, that does leave those employers open to lawsuits from injured workers.

After all, that’s the trade-off: If your employer is covered, then you are covered. If injured on the job, under workers’ comp rules, you’re supposed to have access right away to medical treatment. If injured badly enough that you can’t work, you are eligible for other benefits, sometimes including long-term disability awards.

The problem is, for some reason (namely $$$), no one has yet crafted the perfect system that is immune to schemers and scam artists:

• some workers fake injuries and draw benefits while lying around doing nothing
• some workers not only fake injuries and milk the system but also take on new work and get double-pay
• some medical providers don’t provide adequate treatment, yet bill insurance carriers as if full treatment was provided
• some medical providers convince patients to undergo unnecessary treatments, in order to pad the bill
• some insurance providers routinely deny the first claim, simply because they can
• some insurance providers routinely deny the re-submission of the first claim, under a “code designation” that, when it’s traced out, amounts to this: “We denied the re-submission because the first claim was denied.”
• some overseerers of state workers’ comp agencies are either:
  • corrupt, or
  • totally inept.

That being said, let me dig into my penultimate post on USWORKERSCOMP.COM.

From a Sept. 27 post at Futurity.org, we see the hed “Claims fall as workers’ comp premiums rise“:

While the number of claims for workers’ compensation have dropped during the past two decades, premiums have continued to rise.

A new study shows higher premiums are associated with decreases in the Dow Jones Industrial Average and interest rates on U.S. Treasury bonds. Findings are reported in the September-October issue of Public Health Reports.

“Insurance companies appear to have been setting premiums according to their returns on the stock and bond markets, not according to the number of claims they have,” says J. Paul Leigh, professor of public health sciences at the University of California, Davis, and senior author of the study.

“They invest because they need a financial cushion to pay for claims and, if they lose, raise premiums to recoup their losses.”

Understanding workers’ compensation trends is important so policymakers can establish regulations that protect workers and contain costs, says Leigh, who notes that, in 2009, between 3 and 4 million cases of job-related injury or illness were recorded and costs to employers were close to $74 billion.

In conducting the study, Leigh and UC Davis postdoctoral scholar Abhinav Bhushan examined U.S. Bureau of Labor Statistics data on incidence rates for injuries and illnesses, along with data from the National Academy of Social Insurance on workers’ compensation costs (to employers) and benefits (to workers and medical providers) from 1973 through 2007.

If that’s not enough to make you want to hire an experienced, trained workers’ comp attorney, consider this, from a Sept. 26 piece at The Lane Report:

Kentucky employers will see a significant reduction in their annual assessment for Workers’ Compensation insurance premiums beginning Jan. 1, 2012. The move was approved by the Workers’ Compensation Funding Commission Board of Directors this week.

“This action by the commission means Kentucky employers will realize an estimated $3 million in savings, which is great news as Kentucky companies continue to recover from the recent economic turndown,” said Dwight Lovan, commissioner of the Department of Workers’ Claims.

Specifically, the Special Fund rate for all employers will be reduced by 3.4 percent (from 6.5 percent to 6.28 percent) – the first reduction since 2006 and the lowest rate since the funding commission was established in 1978. Coal company employers had paid an additional 0.5 percent that has been eliminated for the coming year, placing the coal industry’s assessment equal to that of all other Kentucky industrial groups.

The reductions were possible because actuarial projections reflect that sufficient funds will be available to cover all costs and meet the statutory deadline to fund all liabilities.

The assessments were established by the General Assembly to pay previously outstanding Special Fund claims, fund the Coal Workers Pneumoconiosis Fund and the Uninsured Employers Fund. Additionally, the monies generated also fund some operations of the Labor Cabinet.

I don’t know about you, but anytime I see a report like this from the mining industry? I get questions.

A second, legal opinion seems in order to me…

Workers’ comp, National Roundup continues in Part 2.

We can help you find an attorney

As these cases demonstrate, 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

According to a June 20 article in The New York Times, “Hundreds of workers hired by BP subcontractors to help with the cleanup of the oil spill in the Gulf of Mexico are complaining that they traveled long distances to assist in the effort — only to be told that their jobs had been given to local residents.”

Governors favor local workers

Apparently contractors and subcontractors started out hiring anyone they could get with related experience and skills, but as time wore on the governors of the affected states (Louisiana, Mississippi, Alabama and Florida) began pressing  to favor local job seekers over imported workers–even if the workers had already signed contracts.

“In Florida, 86 percent of cleanup workers are now Floridians; in Alabama, 82 percent are from that state; and in Mississippi, 83 percent of the cleanup work force are residents. Those figures have nearly doubled in the last month, BP records show.

“ ‘You hate to take away anyone’s livelihood,’ said Dan Turner, a spokesman for Gov. Haley Barbour of Mississippi. ‘But the locals here have already had their livelihood taken away, through no fault of their own.’

“Subcontractors say they must follow the desires of BP and the governors if they hope to keep their contracts.”

The cleanup crews now total about “25,000 workers [who] have been hired by more than 100 subcontractors” to work both on shore and in the Gulf. Ultimately, though, the out-of-state workers who have been–or will be–turned away may turn out to be the lucky ones.

(Note: estimates of current workforce levels range from 24,000 to 27,000 among various reports.)

Damaged cleanup workers may face bureaucratic maze

Sure, everybody needs the work and the paychecks, but the regulatory infrastructure is such a mish-mash that workers who get sick or injured may find themselves in bureaucratic purgatory.

This is from the Washington NBC affiliate, dated June 16: “An army of 24,000 temporary workers have swarmed the Gulf Coast to help clean up the mess from the massive BP oil spill. But it is far from clear who is responsible for ensuring the safety and long-term health of those doing the critical and often dangerous grunt work.

“Already workers have been injured, some hospitalized.

“Workers are covered by a patchwork of federal, state and local agencies and regulations. The government only last week announced how worker safety efforts in the Gulf would be coordinated, more than 50 days after the rig explosion.”

And here’s what a June 22 Reuters article says: “Workers struggling in the heat to clean up oil from the the ruptured BP (BP.L) well in the Gulf of Mexico risk short-term lung, liver, and kidney damage from fumes, experts said on Tuesday.”

The experts appeared at an Institute of Medicine hearing in New Orleans, reporting that “[s]tudies of the health effects after seven supertanker spills showed that clean-up crews had suffered short-term health problems from volatile organic compounds.”

” ‘You really are talking about a triangle of heat, chemical exposure, and then the behavior changes that you see as a result,’ said Linda McCauley, dean of Emory University’s School of Nursing in Atlanta.”

Images of 9/11 and Exxon Valdez remediation

The NBCWashington report says long-term lawsuits are to be expected, and makes comparisons to the 9/11 rescue workers (whose recent settlement we covered here) and the 1989 Exxon Valdez spill.

“Based on past disasters, workers could become tangled in years of litigation if they suffer any injuries or other ill health effects while cleaning up the Gulf region.

“ ‘We’ve been through this before,” said Rep. Jerrold Nadler, D-N.Y., referring to workers who helped clean up the World Trade Center site after the 9/11 attacks.

“Nadler said the government told workers at the site that they, too, were safe, but today ‘thousands of people are sick or dying.’

“ ‘I’ve been fighting for years to get proper health care and monitoring for the thousands of people who are sick today who worked in the World Trade Center,’ said Nadler, who sponsored a bill to provide health care and compensation to 9/11 first responders and survivors of the tragedy. ‘Now I see the whole thing reproducing itself in the Gulf.’ “

As mentioned in the article, the Valdez  and BP tragedies are similar not only in regards to oil and coastal waters but also because a corporate entity is ultimately responsible.

Governor wary of  ‘committee approach’

However, what’s not clear is who is in charge of running the cleanup show, and hence which agency is overseeing workers’ safety issues and health-related claims: ” . . . even within the government there is confusion about who is in charge of protecting the 24,000 individuals engaged in the Gulf cleanup, including nearly 19,000 contract workers dispersed offshore and along the coast lines of Louisiana, Mississippi, Alabama and Florida.”

For example, Alabama Gov. Bob Riley reportedly complained to CNN about a “committee approach” among government agencies that complicates the process, using an example involving a state wildlife agency’s “push to clean beaches [that] met with resistance from federal Occupational Safety and Health Administration over limits on how many hours cleanup crews could work.”

“Adding to the complication is the fact that OSHA typically oversees safety on land, while the Coast Guard deals with worker safety issues on inspected vessels. That means smaller boats that are not inspected by the Coast Guard would come under OSHA,” says the NBCWashington report.

Although OSHA and the Coast Guard have signed an agreement of understanding, OSHA “is stretched extremely thin,  with only has 25 staffers in the four-state spill region, according to Jordan Barab, deputy assistant secretary of Labor for OSHA.”

Safety and health incidents already have occurred, and “Barab said there have been safety lapses on the part of BP but added: ‘Every time we’ve asked them to clean up their act, they’ve done that.’ ”

Regardless of that vote of confidence, keeping track of the numbers is difficult, even at this relatively early stage of the cleanup.

Some workers have already been treated

For example, this June 15 account in The Kansas City Star says, “Although Louisiana state records indicate that at least 74 oil spill workers have complained of becoming sick after exposure to pollutants, BP’s own official recordkeeping notes just two such incidents.”

After a couple of short grafs, the account continues: “The gap between the state data and BP’s reflects the difficulty in tracking the health effects of [toxic compounds] from the oil spill. It also raises questions about whether the federal government can rely on BP to determine whether conditions remain safe for the more than 27,000 workers now engaged in cleaning up the worst oil spill in the nation’s history.”

The NBCWashington piece quotes a Houston attorney thusly: “Workers are protected by ‘a hodgepodge of regulations,’ said Matthew Shaffer, an attorney with Houston-based Schechter, McElwee, Shaffer & Harris, a firm that handles maritime-related personal injury cases, who said he has already heard from injured oil spill workers.

“He expects to see many workers come down with illnesses stemming from on-the-job conditions. ‘No one’s really in charge, and a lot is left to employers or the industry to police themselves,’ he said.”

BP spokesman Ray Viator indicated the company is working with OSHA and another agency, the National Institute for Occupational Safety and Health, in monitoring air quality and the need for protective gear such as respirators (“not needed, yet” seems to be the consensus so far).

The NBCWashington piece also poses this question: “So what will happen to BP workers if they do get injured or suffer long-term illnesses?”

Spokesman: workers comp first, then BP to pay

The answer, says Viator, is that “workers’ compensation is provided through the contract workers’ employers.

“As for claims beyond that, he said, ‘BP has agreed to reimburse its contractors for legitimate costs relating to certain worker injuries sustained during their course and scope of employment with the contractor companies.’

“That’s not enough, said [Congressman] Nadler. ‘Unlike at the World Trade Center, you have a private party who’s responsible and who should be covering the costs for all of this,’ he said.

“But he said he was more concerned ‘not with claims, but preventing thousands of people from getting sick.’ “

Apparently, the bottom line is this: We’ve only begun the long, intense cleanup of the Gulf region–and once it’s over, we’ll have a lengthy process of mopping up the human damage.

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

Workers compensation basics

Injury on the job

Choosing an attorney

Hard times are causing states to rethink approaches for funding various workers’ comp funds, and in California, a superior court judge “has ruled that Gov. Arnold Schwarzenegger illegally furloughed 7,400 employees of the State Compensation Insurance Fund this year,” according to a post at the Insurance & Financial Advisor Web site.

“Superior Court Judge Charlotte Woolard affirmed a prior ruling against the state involving the employees for the “State Fund,” which sells workers’ compensation insurance to employers and uses the proceeds to operate, according to the San Francisco Chronicle. The State Fund relies on no funding from the state treasury.”

The IFA post said the ruling would provide “back pay plus interest for the days they missed work,” but a more recent Chronicle story reports the issue is undecided. Explaining that “[t]he ruling came in a case filed by the Service Employees International Union Local 1000, which represents 6,260 fund employees,” the article also says,  “It’s unclear whether employees will be able to collect back pay for the days they were furloughed. The state fund and the SEIU believe the order entitles them to it.

“But, said a spokesman for the governor’s office, ‘The judge did not rule on the issue of back pay. She was silent on the issue.’ ”

A legislative task in Oklahoma recently heard testimony from Nevada officials that changing from a state-operated to a privately operated system has improved rates for businesses in Nevade, according to a CNBC post dated Sept. 2.

“Nevada’s workers’ compensation insurance rates have dropped since that state privatized the agency providing such insurance, Nevada executives told an Oklahoma legislative task force Wednesday.

“The task force is considering privatizing Oklahoma’s workers’ compensation agency, CompSource Oklahoma.”

The change in Nevade came a decade ago, “when it transformed the agency from a monopoly to a mutual insurance agency owned by its policyholders, said Douglas Dirks, president and chief executive of Employers Holdings, Inc.

” ‘Rates have gone down fairly consistently since the market was opened,’ Dirks said.”

Reports from Colorado include descriptions of  a “parade of angry workers [who were] hurt on the job” and subsequently testified in a recent probe of the state-chartered, tax exempt, quasi-governmental agency Pinnacol by a special committee of legislators and citizens.

According to a “Politics West” spot in The Denver Post on Sept. 1, injured workers questioned not only a surplus of coverage denials but also surplus cash reserves, too much spying on claimants and an out-of-touch perks package for agency compensation packages.

“Mike Byrd, hurt in a work-related car accident in 2004, told a special panel created by the legislature about Pinnacol denying treatments and trying to send a company nurse with him to every one of his doctor’s appointments as a ‘spy.’

“Like others, Byrd questioned how Pinnacol, a quasi-governmental agency that was struggling to remain solvent a decade ago, could grow so profitable that it has amassed a $700 million surplus.”

Also on Sept. 1,  the Durango Herald reported: “A former Durango firefighter testified Monday that the state’s workers’ compensation company spied on him and trashed his reputation in the community in an attempt to deny his claim for an injured back.”

Stahl said he was injured twice and Pinnacol paid for the first claim but refused the second. “He finally sold his house to pay for surgery out of his own pocket. Surgery has helped, but he had to retire from the fire department. He became a nurse and now is studying case management for injured workers.”

Both accounts report a few injured workers testified that their cases were handled well by Pinnacol, but the Herald piece ends thusly:

“Stahl said it was inexcusable for the state’s dominant workers’ compensation insurer to spend $143,930 for a luxury suite at Invesco Field, home of the Denver Broncos; a $133,000 trip to the Four Seasons Resort in Scottsdale, Ariz.; and a $2,515 dinner, which included two plates of $144 lobster and three bottles of $115 wine, while workers suffer.

“Pinnacol has defended the expenses as good for morale.”

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Have you been injured on the job?

Here’s what to do first.