GOP wants cap in N. Carolina; hot debate in Illinois draws Speaker’s ire

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According to a May 16 account at trade site Business Insurance, “A federal judge has upheld a subpoena issued by the Occupational Safety and Health Administration requesting inspection reports from an insurer of a company where two workers were killed in a grain bin accident last July.

Ruling says OSHA due info from insurance company in grain company deaths

“In his May 2 ruling, Judge Philip G. Reinhard upheld the recommendation of the magistrate judge in Hilda L. Solis vs. Grinnell Mutual Reinsurance Co., which requires the workers compensation insurance company to testify and present documents concerning inspections and reports it prepared for Haasbach L.L.C. when two teenage workers died in a grain engulfment at Haasbach’s Mount Carroll, Ill., site last year.”

On the same day, the (Freeport, IL.) Journal-Standard reported:

Carrier says subpeona  would ‘discourage businesses’ in safety inspections

Says a May 12 OSHA press release:

Grinnell contended that the subpoena would discourage businesses from allowing insurers to conduct safety inspections if the material contained in the inspection reports can be used against a business during later litigation or OSHA enforcement proceedings. The court ordered that the records be given to OSHA.

OSHA Assistant Secretary Dr. David Michaels praised the decision. “The court affirmed OSHA’s authority to obtain relevant information from an employer’s workers’ compensation insurance company. This is not surprising legally, but it does illustrate that workers’ compensation and OSHA are not separate worlds divorced from each other,” he said. “Workers’ compensation loss control activities overlap with OSHA’s efforts to bring about safe and healthful workplaces, and in order to achieve a safe and healthful working environment for all Americans, all efforts of business, insurance, labor and government must move forward together.”

The court ruled that OSHA has jurisdiction to investigate the workplace fatalities, and further has the authority to require the production of relevant evidence and the ability to issue a subpoena to obtain that evidence. The requested documents, which included copies of site safety inspections, applications for insurance coverage for the site, and correspondence between Grinnell and Haasbach concerning the site, were found to “reasonably relate to the investigation of the incident and the question of OSHA jurisdiction,” according to the decision.

Transparency in workplace safety should be the goal

Regardless of your stance on the “over-reach of the federal government,” it’s hard to argue against any decision that introduces transparency to workplace injuries, as long as the resultant data are used to improve worker safety. If you have an ongoing case that you believe may be affected by this ruling, make sure your attorney is aware: Simply ask if the decision has any bearing on your case.

GOP–now in control in N. Carolina–seeks cap on long-term benefits

Workers and workers’ comp attorneys and advocates in North Carolina should be aware of a GOP proposal reported on by station WXII. In a May 16 report, the station says, “ The way North Carolina compensates workers injured on the job faces major changes in legislation nearing a vote in Raleigh, but critics say the law would force thousands of people back into the job market at the wrong time.

“The most controversial change proposed would put a cap on how long injured workers can receive benefits. Currently there is no cap.”

Forsyth County Republican Rep. Dale Folwell introduced the legislation, which caps workers compensation at 500 weeks, which is a little more than nine years.

“When you see lifetime benefits (being paid out) for temporary disability, most people would agree that’s something needs to be looked at and corrected,” Folwell said.

He said the current system discourages injured workers from returning to work. Often that means at lower paying jobs.

Apparently, similar reform was attempted about six years ago, but in a much different political climate. When business interests attempted to lower their exposure then, Democrats still had control. Now, Republicans–for the first time in a century–control both the House and Senate.

Illinois Speaker threatens to send workers’ comp cases to court

The continuing battle over workers’ comp in Illinois took a new tack this month, according to a May 16 account in the State Journal-Register: “In a shot across the bow to bickering interest groups, Illinois House Speaker Michael Madigan, D-Chicago, said he will back a bill that would kick workers’ compensation cases into the courts if the interest groups involved cannot reach a compromise on reforms to the system.

” ‘In the case of workers compensation, you’re dealing with the five most powerful lobbies in the legislature,’ Madigan said, referring to doctors, hospitals, labor, business and trial lawyers. ‘There’s a club among doctors and lawyers and sometimes labor unions, which is not working in the best interests of the injured worker.’ ”

‘Punishing’ miscreants and ending ‘coziness’

Then there’s this, from the May 14 Chicago Tribune: “The various interests have reached consensus on going after health care providers who submit bills for treatment they did not provide and being more aggressive in punishing companies that fail to maintain proper workers’ compensation insurance.

“There’s also a desire to eliminate what Raoul calls the ‘coziness’ in the system. Arbitrators who decide cases at the Illinois Workers’ Compensation Commission frequently encounter the same attorneys representing clients, leading to the possibility of more favorable rulings.”

The Illinois effort to strike a balance among crucial parties is a microcosm of issues faced by workers’ comp systems across the country. As such, it is worthwhile to monitor developments and notice which interests emerge and which arguments prevail. Stay tuned.

We can help you find an attorney

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

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

Is workers’ compensation in Illinois a subject that interests you? If you live and work in Illinois, and if you have been injured on your job or become ill due to the nature of your job, workers’ compensation in Illinois probably holds great interest for you. You or a friend or loved one may be in a dispute with their employer regarding workers’ compensation benefits, right now.

If this is the case, remember what workers’ compensation is. Workers’ compensation is a kind of business insurance that is provided by your employer that gives you and/or your family benefits in the form of income, medical coverage and rehabilitation in the event that you suffer injury, illness or death as a result of, or in the course of, your job. This is true no matter who is at fault for your injury or illness.

If you were to lose your life on your job, these financial benefits can be given to your surviving spouse and/or children or dependents. These benefits come as a matter of “right” to you or your dependents or survivors. Your employer is not allowed to resort to any legal defense. In return for this, you cannot sue your employer, nor can your spouse and/or children or dependents.

Workers’ compensation laws came about so you would not have to prove that your injuries or illness was the “fault” of your employer. They were also established to reduce the need for litigation. Workers’ compensation laws were first passed in Maryland in 1902. The first federal workers’ compensation law came in 1906. By 1949, every state had passed some form of workers’ compensation law.

The Occupational Safety and Health Administration (OSHA) ensures your safety and health on the job at the national level. State laws that vary from state to state complement the national regulations of OSHA.

This is not true regarding workers’ compensation. Each state has its own workers’ compensation laws because there in no national agency to administer workers’ compensation.

The Illinois Department of Labor administers the laws regarding employment and labor in the state. The Illinois Workers’ Compensation Commission operates the state court system for workers’ compensation cases.

Illinois regards workers’ compensation as a no-fault system of benefits paid by employers to workers who experience job-related injuries or diseases. Workers’ compensation in Illinois is mandatory. Employers are required to provide workers’ compensation insurance. No waivers are permitted, but in some instances employers with two or less employees do not have to provide workers’ compensation coverage.

The first workers compensation act in Illinois was passed in 1912. Since that initial act was passed, workers’ compensation laws have been reformed and amended several times. The Illinois Workers’ Compensation Act was lasted amended in on August 21, 2007. Illinois also refers to workers’ compensation as ‘work comp’ and ‘on-the-job injuries’.

Again, it is important for you to keep in mind that workers’ compensation, with a few exceptions, is required of your employer. Your employer has the option to purchase workers’ compensation coverage from a licensed insurance company, be self-insured or be a part of group self-insurers who have pooled their liabilities.

There are good workers’ compensation benefits in Illinois. These benefits include:

• Choice of physician – You are allowed to choose the first two doctors that you want to treat you. If you choose a third physician without your employer’s approval, your employer is not required to pay for those services.
• Medical benefits – Your employer is required to pay for all medical care that is reasonably necessary to cure or relieve you from the effects of your injury.
• Temporary total disability (TTD) benefits – These are benefits that are paid during the period in which you are either temporarily unable to return to work or you have been released by your doctor to do light-duty work but your employer is unable to accommodate you. The payment amount is based on a percentage of your average weekly wage. This is paid until you have returned to work or finished healing. There are caps on these temporary total disability benefits.
• Temporary partial disability (TPD) benefits – These are benefits that are paid during the period in which you are healing and are working light duty, on a part-time or full-time basis and earning less than during your pre-injury job. Again, the amount is based on a percentage.
• Vocational rehabilitation/maintenance benefits – These benefits include treatment, instruction and training necessary for your physical, mental and vocational rehabilitation when you cannot return to you pre-injury job.
• Permanent Partial Disability (PPD) benefits – These are benefits that are paid if you experience some permanent physical loss. The amount is based on a percentage with caps.
• Permanent Total Disability (PTD) benefits – These are benefits paid to you if you experience the loss of certain body parts, or you are permanently unable to do any kind of work for which there is a reasonably stable employment market. Amounts are again based on percentage with caps.
• Death/Survivors’ benefits – These benefits are payable in the event of your death on the job to your surviving spouse and/or children or dependents. The amount is based on a percentage of your wages. There is also a burial benefit.
• Limited attorney fees – Attorney fees are usually 20% of your settlement.

If you have a dispute with your employer over workers’ compensation benefits because of an injury or illness, your first step is to have your case tried by an arbitrator. The decision of the arbitrator can be reviewed by a panel of three commissioners from the Illinois Workers’ Compensation Commission. Additional appeals can allow a workers’ compensation claim to go all the way to the Illinois Supreme Court. However, the vast majority of claims are not appealed after being reviewed by the commissioners.

Once again, you or a friend or loved one may be currently in a dispute regarding workers’ compensation benefits. You will probably need the help of a legal professional to settle this dispute because of the legal process involved.

The Illinois workers’ compensation attorney that you choose could make all the difference in the world.