Tag Archives: workers’ comp reform

The complex world of Workers’ Comp, part 2

New book offers hope for workers’ comp reform; don’t let an initial partial impairment rating stop you–if you deserve a total impairment rating, Fight Back!

Once you’ve hired a trained, experienced workers’ comp attorney, you probably won’t feel like reading a book on the subject.

Then again, it never hurts to know more about a subject that crucially affects your life–if you or a loved one have been injured and you’re fighting to receive proper treatment and benefits, the more you know, the better.

Workers’ comp reform a nationwide issue

Across the country, almost every state is looking at ways to revamp its workers’ comp system…or else they’ve recently enacted some level of reform. A Sept. 26 press release at insurancenews.net heralds a new book entitled “How to Save Big on Workers’ Compensation: With Insights from Leading Industry Experts,” written by Adam Friedlander, president of Friedlander Group, Inc., a workers’ compensation company for retailers, wholesalers, restaurants, hotels/motels and oil dealers in New York.

‘Creating a culture of caring’

According to Friedlander, “creating a culture of caring for employees’ well-being is the single most important step in saving money on workers’ compensation.”

Sounds good to us–seems like all too often that “reform” actually translates to less benefit and less choice for the injured worker. So we’re happy to read that the book is:

A digestible guide for businesses large and small, human resources professionals and the insurance community, [in which] Friedlander offers actionable, money-saving ideas that enable employers to operate at optimal levels. “How to Save Big on Workers’ Compensation” features exclusive interviews with leading industry experts, including Larry LaPointe, former director of the Division of Confidential Investigations at the New York State Insurance Fund (NYSIF); Ed Hiller, director of Claims and Medical Operations for NYSIF; Brian Mittman, the managing partner of Markhoff & Mittman, a law firm that helps injured workers; Robert Firmbach, a veteran loss-control and safety expert; Eileen Preiato, the Friedlander Group Claims Solution™ manager; and Cosmo Preiato, executive vice president of Friedlander Group and head of Safety Group Underwriting and Operations.

The book also features success stories from a variety of businesses—restaurants, hotels, retailers—that detail their individual culture of caring and safety, which has ultimately led to increased productivity and profits.

A ‘lightning rod’ even though in big picture its costs are small

“Workers’ compensation is a lightning rod for many employers” says Friedlander. “In comparison to payroll, rent and health insurance costs, workers’ comp is small. Nonetheless, most employers have a negative reaction to this expense. They believe workers’ comp is another tax and overregulation. Some don’t believe that employee claims are legitimate. The truth is that the costs to an organization generated by injured employees extend far beyond increased premiums. My book helps business owners realize that all claims are not beyond their control. Where safety is an integral part of the business culture, there are fewer claims, less fraud and lower premiums. Employers need to understand that their employees are their greatest asset. Can you win your World Series without your team working optimally?”

More power to Mr. Friedlander–if he can help states lower costs and lower the rate of injured workers–while affording proper care to those who do get injured, well, lets just say we hope all the proper authorities get a copy of this book.

Total vs. partial impairment ratings

From yet another press release, this from a “presswire” outfit called World News Report, a piece that asks a question heard in many workers’ comp attorneys’ offices: “How long can I receive total disability workers’ compensation benefits?”

Questions, issues faced by workers in every state

The PR is geared toward injured workers in Pennsylvania, but it raises questions and addresses issues common to workers’ comp system nationwide:

It’s a common question among injured workers in Pennsylvania. Broadly speaking, the answer is quite simple: there is no limit on the amount of time an injured worker may receive total disability benefits.

However, when it comes to seeking longer-term benefits for total disability, the devil’s in the details. Many workers’ compensation recipients face a substantial stumbling block in the form of an Impairment Rating Evaluation (“IRE”).

The Pennsylvania IRE Process

In Pennsylvania, after an individual has received total disability payments for 104 weeks, the workers’ compensation insurance company providing benefits can request him or her to attend an IRE. Although the term “request” is used in the Pennsylvania Code, injured workers functionally have no choice but to comply: failure to attend the IRE can result in the insurer attempting to suspend benefit payments.

At the IRE, a doctor selected by the Pennsylvania Bureau of Workers’ Compensation will examine the injured worker and thoroughly review his or her medical records. Then, based on American Medical Association guidelines, the doctor will express the workers’ level of impairment from their on-the-job injury in terms of a percentage (an individual with a 0 percent rating would face no difficulty in completing day to day activities, while someone who received a 50 percent or more rating would have significant trouble with commonplace tasks).

Long-term effects of partial rating

The article goes on to explain that an impairment rating of 50 per cent of more presumes an injured worker to be totally disabled. If the totally disabled worker never recovers, lifetime benefits ensue. However, a lower rating may allow the insurance carrier to rate the worker as “partial” rather than “total.” Although the amount of weekly benefits does not change, the partial rating can have serious long-term implications.

“A partial disability designation has a devastating effect on the receipt of long-term workers’ compensation benefits. Although the amount of weekly workers’ compensation payments will remain the same for a worker whose disability status has been reduced to partial, benefits for partially disabled workers last for a maximum of 500 weeks (about nine and a half years).”

Rating can be appealed

The good news? That rating can be appealed, and if the status should be “total impairment,” it should be appealed. The message: “Don’t let the full workers’ compensation benefits you deserve slip through your fingers.” In other words, find a good, thoroughly competent attorney who knows the ins-and-out of the system and have them fight for rights.

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

Updates from W. Va, Illinois–and a troubling case from Alabama

Woman broke wrist in fall at work, yet top state court ruled against her

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Volunteer firefighters get state help

Good news from West Virgina, according to a June 20 piece from Insurance Journal, “West Virginia’s volunteer fire departments looking to offset anticipated increases in their workers’ compensation insurance premiums can turn to a website launched by the state auditor’s office.

“Auditor Glen Gainer’s office was tasked by the Legislature with developing a program to provide reimbursements to fire departments.

“Gainer said reimbursement forms are now available on his office’s website.”

We’ve been following the plight of the Mountain State’s numerous VFD outfits for some time, most recently in this installment.

Illinois AG acknowledges ‘reform’ fell short

Another story we’ve been following is the battle for workers’ comp reform in Illinois, most recently in the same post linked above. A June 19 editorial in the Belleville News-Democrat takes Attorney General Lisa Madigan to task for not publicizing the issue enough, even though she concedes the new legislation is not real reform:

A recently enacted reform bill isn’t going to change much because it doesn’t address the crux of the problem — causation. Incredibly, in Illinois, an injury covered by workers’ comp doesn’t have to be caused by work, it just has to possibly be a contributing factor.

“To say we’ve reformed the workers’ comp system is a gross overstatement,” Madigan told us.

So why didn’t Madigan publicly advocate for meaningful reform while the bill was in the spring legislative session?

Madigan frequently uses the bully pulpit to advocate for legislative and other changes, everything from cracking down on meth dealers to opening up public records.

This spring she championed bills to strengthen the prevailing wage, protect consumers when a car dealership shuts down, crack down on meth repeat offenders and others. She vigorously opposed a bill to allow automatic rate hikes for public utilities. She called for Apple and Google to address privacy issues and Pabst Brewery to lessen the alcohol level in its new drink Blast.

But not even one press release on workers’ comp reform, which she said is a top issue for Illinois.

More coverage and response can be found at the following links:

Alabama Supreme Court rules against injured grandmother

This next case, from Alabama, is one we find particularly disturbing due to the state Supreme Court’s ruling against an injured worker. However, it does show the importance of retaining a trained, experienced workers’ compensation attorney because the various laws and statutes can be so complicated and open to interpretation, especially if an injured worker makes statements that later come back to hurt the case.

Workers give up legal rights in return for coverage

To be sure, we don’t think any party involved should get away with gaming the system, whether it be employee, employer, medical provider, insurance carrier–or the authorities in charge of the system. That being said, we do believe in the fundamental precept of workers’ compensation, that workers injured on the job sign away their right to sue the employer in exchange for workers’ comp protection for injuries sustained while working and in the course of employment.

One attorney’s summation

From an Alabama attorney’s blog, a summary of the case, posted in April:

Last week, the Alabama Supreme Court issued it’s opinion in the case of Ex Parte Patsy Patton d/b/a Korner Store (In re Lana T. Brown v. Patsy Patton d/b/a Korner Store).  Ms. Brown worked as a cashier at the Korner Store, which is a gas station/convenience store.  She walked to the deli counter to refill her coffee cup, and when she began walking back to the front of the store, she “inexplicably fell, breaking her wrist”.  She filed a workers’ compensation claim, which was denied by Korner Store, contending that the fall was attributable to an idiopathic characteristic or was due to some unexplained, but not work related, cause.

The cause of injury: work as assigned? or work on the job?

In a bit of murky reporting, this Alabama TV station’s report does get one thing right: “The injured worker could not prove it happened because of the work she was assigned to do, and in turn the supreme court said the company would not be held responsible.”

Introduction of ‘idiopathic factors’

Here’s the crucial passage from the ruling itself:

“The principal ‘fault line’ that has been revealed by the application of the ‘arising out of’ requirement by Alabama courts is the distinction between accidents that are at least partially attributable to an affirmative employment contribution and those that are attributable solely to what are called ‘idiopathic’ factors, a term that ‘refers to an employee’s preexisting physical weakness or disease’ that is “ ‘peculiar to the individual” ’ employee. Ex parte Patterson, 561 So.2d 236, 238 n. 2 (Ala.1990). Thus, a fall may, under the appropriate circumstances, properly be deemed an accident arising out of employment․ In contrast, a fall may, under the appropriate circumstances tending to show an idiopathic factor, not be an accident arising out of employment․

‘She did not know why she fell’

According to this version of the ruling, the injured worker’s statements may have weighed against her:

The employee had noticed no hazardous material on the floor of the store where she fell at the time of her fall, nor is any such material apparent from the videographic recording of the fall, and she testified that she did not know why she fell. The employee’s injured wrist was later placed in a cast, and she returned to work the following day; she continued to work normally for the employer until leaving her employment in January 2005 to care for her grandchild, and the employee admitted that she did not believe that she was disabled from working should she choose to do so.

Lesson is, look for a really good attorney

What’s particularly galling is that this injured woman not only declined the scam-opportunity to “milk” the situation for extended time off and attendant benefits but also that she hopped right back to work the next day, on duty, ready to attend more customers of the store. Furthermore, she didn’t claim a long-term, debilitating injury. And it sounds as though she would’ve stayed at the store but her grandchild needed her more.

True, it’s not fair–at least reading from the various sources: From what I’ve read, Lana Brown should absolutely be compensated for her wrist injury.

However, the takeaway here is not that the system is bucked against you, so just give up.

No, the message is this: None of the states have perfected a fair way to always come to the correct decision in cases of workplace injury; therefore, you need to know that compatible, trained and experienced attorneys are available to give you legal advice and counsel through a maze of rules and regulations.

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

Workers’ comp battles rage in state halls from Maine to Washington

‘Lump-sum’ a major sticking point in Washington state

We’ve been following legislative battles over workers’ compensation system in several states, especially Washington, Montana and Illinois, and also in West Virginia.

Around the nation, workers’ comp impasses abound

An April 22 piece at Huffington Post picks up on the topic, focusing on a battle in Maine over psychological injuries received in the line of duty (a particular concern for first responders), but concluding with an overview of nationwide perspective:

There’s a flurry of legislative activity around the country — notably in Maine, North Carolina, Illinois, and Montana — geared towards reining in the costs to employers of workers compensation claims. Maine Governor Paul LePage (R), who’s already sparked a high-profile battle with the state’s labor groups, went so far as to mention workers comp reform in his inaugural address. Illinois Governor Pat Quinn (D) recently told his state’s enthusiastic Chamber of Commerce that workers comp reform will happen “this year.”

While some bipartisan efforts exist, Republicans generally push the reforms, which business groups and insurance trade associations support. And though many of these discussions have been brewing for years, the ongoing efforts seem to dovetail nicely with the anti-labor zeitgeist fostered in Wisconsin and Ohio, as stories of able-bodied workers gaming the system now abound in legislative halls.

Evergreen State battles over budgets and ‘lump-sum’ proposal

In Washington state, legislators are struggling with three huge, interrelated issues–the state’s operating budget, its construction budget and workers’ comp reform. House and Senate leaders are so divided that they failed to reach agreement last week when the regular term ended, so Gov. Chris Gregoire has called a special session to revisit the issues beginning April 26.

A ‘permanent battleground’

An April 23 article in the Seattle Post-Intelligencer had this to say about the longstanding feud:

A permanent battle ground for organized labor and business groups, the fight to reform the state’s compensation system for injured workers is heading into overtime after Gregoire deemed it a special session issue and the Senate backed that by putting a bill they want to move forward in their budget. Indeed, business groups and the Senate aren’t giving up a measure that would establish the option of lump sum settlements to the system — a move they will save hundreds of millions of dollars in costs. But labor remains opposed any kind of settlement, saying it undermines the point of the system — one created in 1911 to provide injured workers with money as they heal. The House has proposed its own package of bills that nip-and-tuck the system to streamline it, and they say those changes would add up to about half a billion in savings in the next six years.

Workers’ comp system faces insolvency

As we wrote in earlier in the year, “The Seattle Times calls “one of the most contentious issues in the legislative session.” In February, an emergency rate hike was pushed through, and in January the governor was being praised for a ‘bold plan’ to revamp the system.

“Now, despite progress on different bills, officials are saying hard choices loom ahead, with chances of having a bankrupt system within five years, according to a Feb. 26 piece in the Seattle Post Intelligencer, which reports that the governor, ‘the head of the state Department of Labor and Industries and the state auditor have all said the system is heading toward bankruptcy. In a December report, the auditor’s office said the state’s fund for workers compensation has a 95 percent chance of becoming insolvent in the next five years.’ ”

According to the DLI, about 8 per cent of workers’ comp claims account for nearly 85 per cent of costs, due both to injuries requiring longterm recovery and rehab and also for those awarded lifetime pensions.

Editorial calls for letting workers decide

An editorial in today’s Tacoma News Tribune argues that organized labor has stubbornly drawn a line in the sand and that the lump-sum option has plenty of worker safeguards:

Unions’ attacks on the proposal have a decidedly paternalistic tone. Critics essentially argue that workers don’t know what’s good for them and if given the option of settling their claims for about 80 cents on the dollar, they might just foolishly take it.

Lump-sum settlements would no doubt prove popular here, just as they have in the 44 states that offer them. Many injured workers prefer to get their money upfront rather than have it dribble out in regular checks. In some places, labor has embraced the choice as a worker benefit, which it is.

The settlements would be strictly voluntary, and several safeguards are built into the proposed system to ensure workers make the decision with their eyes open.

The new House proposal improves worker protections even further. Workers would have to wait six months to settle their claims to ensure that they weren’t pressured into premature decisions. Settlements couldn’t be offered to workers who already have pensions, and lump-sum settlements would be allowed for lost earning power only, not medical claims.

Those changes reduce the possible savings to the workers’ compensation system while still retaining a settlement option that would lend the system greater predictability.

Doing nothing should be out of the question. The status quo – a system in which Washington grants lifetime pensions at an unrivaled clip and where about 85 percent of compensation costs come from only 8 percent of all claims – is not sustainable without huge increases in payroll taxes.

Maybe the Governor can push the lege to finally reach consensus and get this problem solved for the workers of Washington State.

Next time: an update on other battles around the country.

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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

Washington governor makes ‘bold’ policy move; Florida system ‘competitive,’ says agency report

Workers’ comp reform remains a hot topic in the Northwest, where Washington State Gov.  Chris Gregoire is making news with what Bloomberg.com calls “bold policy suggestions,” a few months after the I-1082 initiative failed at the ballot box:

After years of talking about government reform, Gov. Chris Gregoire is suddenly leading the way with bold policy suggestions that have roiled Washington state’s political waters ahead of the 2011 legislative session.

Her suggestions would dramatically overhaul both education and the ferry system, while also addressing the long-term problem of workers compensation costs. All three topics are among the thorniest in Olympia, and some advocates were caught off-guard by Gregoire’s ideas last week.

They probably won’t all survive the legislative session — as the saying goes, the governor proposes and the Legislature disposes. But the executive’s policy framework does play an important role in setting the tone and terms of the debate for lawmakers.

Governor hopes for $720 million in savings

According to a Jan. 6 post at BusinessInsurance.com, “The governor says several workers compensation system changes she plans to introduce could save Washington state $720 million over four years.

“Under her health care provider network proposal, workers would be able to choose their doctor while state and self-insured employers would ‘be able to encourage providers to follow best practices to help workers remain productive and healthy,’ the governor said Tuesday in a statement.

“That proposal alone would save an estimated $160 million over four years, Gov. Gregoire said.”

Union leaders, trial lawyers, other obstacles

One problem in Washington, according to a Jan. 18  guest-opinion piece in The Columbian, is that state law  provides neither for voluntary settlements nor for built-in links between benefits and work-related disease. Another hurdle may be establishing a broad support base, especially so soon after the defeat of I-1082. “Unfortunately,” says the Columbian piece,  “there seems little support for the most effective solutions, which are opposed by union leaders and trial lawyers.

“Today’s workplaces are safer than ever, and fewer claims are filed each year. So why is Washington’s workers’ comp system unsustainable?

“Too many of those claims remain open too long. In Washington, the average claimant is collecting benefits and off the job for 284 days.

“One reason is that, unlike 44 other states, Washington doesn’t allow voluntary settlement agreements. Virtually every other type of insurance has a final settlement, where the worker negotiates a lump-sum payment. But that is prohibited in our state’s workers’ comp system where claims are open-ended — which is why we have four to eight times as many lifelong pensions awarded as the next highest state, California.”

Reforms in Oregon, Florida

The author admires the level of reform effected in neighboring Oregon, noting that “real reform works”–based on measures passed there about twenty years ago–“and premiums there have not increased since 1990. In fact, premiums have decreased 13 percent since 2006 while benefits have increased.”

Unlike Washington, where the failed I-1082 ballot measure would have allowed private insurers to enter the workers’ comp market, Florida has a system that allows both private and state pools. Florida has not been as successful as Oregon in holding down premiums, but Florida’s 2010 statute-mandated report from the Office of Insurance Regulation (OIR) contends that the state’s workers’ comp market remains:

  • competitive enough such that “[n]one of the firms have sufficient market share to exercise any meaningful control” market price, yet
  • affordable enough for employers that “[b]ased on entries and voluntary withdrawals,” the market is an “attractive market for insurers.”

Recent rate hike not enough to wipe out gains of 2003 reform

Despite those findings, though, state workers’ comp rates went up “7.8 percent, effective Jan. 1, after the hike received final approval from Florida Insurance Commissioner Kevin McCarty, according to a Jan. 5 article in the South Florida Business Journal, which also reports that the rate hike “is based on the National Council on Compensation Insurance’s amended rate filing for workers’ comp insurance rates. It originally requested an 8.3 percent rate hike.”

According to an OIR press release, ” The 7.8 percent rate increase follows a decrease earlier in 2009 and still results in rate decreases accumulating to 61.9 percent since the 2003 reforms . . . ,” when the state had some of the highest rates in the nation.

The PR also says, “The report shows the Florida market features 260 entities writing workers’ compensation insurance — 255 private insurers, four self-insurance funds, and the Florida Workers’ Compensation Joint Underwriting Association (FWCJUA). The residual market, the FWCJUA, had 746 policies as of October 2010 with corresponding premiums of $5.5 million. This is a fraction of Florida’s overall workers’ compensation premium, which reported a total of $1.71 billion in written premium in the private market in 2009, ranking Florida seventh nationally.”

Florida’s rates for workers’ compensation have become some of the most competitive in the nation, which is progress when taking into account that, prior to reforms, the state had some of the highest rates in the country.

Abundance of carriers

The OIR released the commissioner’s final order along with a report on rates. It shows that 260 entities are writing workers’ compensation insurance in Florida: 255 private insurers, four self-insurance funds and the Florida Workers’ Compensation Joint Underwriting Association.

“The 2010 report clearly demonstrates a healthy marketplace in Florida, with multiple competitors, numerous options for purchasing insurance, and competitive premiums relative to other states,” McCarty said in a statement. “Maintaining competition and consumer choice is especially important for Florida businesses, given the current economic environment.”

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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