If this sounds complicated, that’s because it often is. Thankfully, many common injuries, such as those to the back, neck, head, shoulder, and hip, are NOT scheduled member injuries. They are treated differently, often allowing the trial court to consider the impact of the disability on the worker’s problems returning to a job. But, that’s a separate topic.

Let’s go back to the scheduled member discussion. Whether or not an injury is limited in compensation as a scheduled member (listed body part) is often a very important question. Often, compensation is greater for injuries that are NOT listed.

So, when does an injury to a scheduled body part go outside the scheduled member provisions? The workers’ compensation carrier would have you believe this never happens. But, that is not true. One way that a scheduled member injury goes outside the listings is if it impairs or limits other body parts that are not listed. An example would be an injury to the leg (which is listed) that causes you to limp and results in further disability to your lower back (which is not listed). People who suffer problems walking due to a leg or foot injury can often end up having back problems. If this is the case, report these problems to the doctor so that they are documented. An injury that limits other body parts is an important topic but one for another day.

What if you suffer a permanent injury to a listed body part that causes you chronic pain? Does that remove the injury from the scheduled member provisions, allowing greater compensation? The chronic pain issue is one that our courts have struggled to evaluate.

In Goodyear Tire & Rubber Company v. Haygood, Alabama’s Court of Civil Appeals again attempted to evaluate the pain exception to the scheduled member provisions of our workers’ compensation laws. Again, if this sounds complicated, that’s because it often is. Haygood is a lengthy case — the attorney for the insurance carrier fought hard to keep the injured worker from being fully compensated outside the scheduled member provisions. The truth is that too many lawyers advertise for personal injury and workers’ compensation cases when they either don’t understand the law or don’t want to fight for their clients. The result is injustice. In Haygood, the worker’s lawyer understood these issues and helped his client achieve a fair result.

Here is what the Alabama Court of Civil Appeals said about chronic pain and the scheduled member provisions of Alabama’s workers’ compensation laws:

for pain in a scheduled member to be totally, or virtually totally, debilitating to the body as a whole, that pain must be such that it completely, or almost completely, prevents the worker from engaging in physical activities with the uninjured parts of his or her body.

As you can see, the chronic pain exception is very limited. You must suffer pain so severe that you are really totally disabled or incapacitated. If the carrier offers you a settlement for a scheduled member injury but you are limited in other body parts as well or you suffer disabling chronic pain, my advice is to talk out the issues with a skilled workers’ compensation attorney before accepting any offered settlement.

The editorial writer discusses the recent fertilizer plant explosion in Texas and concludes:

We don’t yet know the details of how the explosion occurred in West, Tex. But one thing is certain: either the regulations weren’t good enough, or they weren’t enforced well enough. The answer is better regulations or better enforcement – probably both.

I agree. Far from dragging business down, an effective safety system promotes long-term success and growth. It is an investment in our people. It is an investment in businesses that focus on growth and success instead of short-term profit.

In my Alabama accident and injury practice, I have seen several problems with OSHA similar to those discussed by the editorial writer. They are:

1. Not Enough Inspectors — According to the editorial writer, OSHA has fewer inspectors now than it did in 1975. Yet, our economy and population have grown tremendously in the over 3 decades since then. In Texas where the explosion occurred, it would take 98 years for OSHA to inspect all the existing facilities because of its lack of inspectors. I have represented many people who were injured in accidents that could have been prevented by a prior safety inspection.
2. Weak Enforcement — With too few inspectors, enforcement of reasonable safety rules is very difficult. But, that is not the only enforcement problem OSHA faces. Too often, OSHA fails to enforce or collect the fines resulting from unsafe workplaces it has cited. OSHA often reduces fines. What’s more, OSHA does not even collect a huge percentage of fines. In short, many unsafe companies simply avoid or evade the rules. In my practice, I have handled personal injury cases where the facility was cited by OSHA over the unsafe practices that led to the injury. I have seen first-hand how OSHA’s legal enforcement is not adequate to face a large company with good attorneys. Why can’t our government devote some legal talent to enforcing its rules? OSHA’s failures in this area make it more difficult for the injured worker to seek full justice later.
3. Lack of Reasonable Rules — The Times editorial writer sums it up nicely. “Congress has made it so hard to set new regulations that it takes OSHA many years and many millions of dollars to establish a single new rule for a single hazard.” OSHA should be responsive to developments in business and industry. Hazards that exist in the workplaces of 2013 are different than those 0f 1975. Technology changes rapidly. New processes and equipment are the result. Yet, OSHA’s rules can remain locked in the past.

Our state, Alabama, lacks any real safety system. Because of this, a working OSHA is essential. Safety is important. We should demand a system that protects our workers from needless injuries.

However, OSHA often fails in its mission. That failure occurs because the agency has largely been held hostage to politics in Washington. It’s time to put worker safety first. The true cost of injuries, deaths, and disabilities from a lack of safety, is tremendous. A strong safety emphasis is good for our workers and it is good for the economy as a whole.

The tragic Texas events resulted in a discussion on MSNBC of OSHA that I felt was important. The clip is below:

Visit NBCNews.com for breaking news, world news, and news about the economy

The video provides some startling facts about OSHA and its inability to protect workers from injury. These facts include the agency’s lack of inspectors. According to the video, OSHA has so few inspectors in Texas that it would take them 98 years to visit all the facilities in that state. The truth is that Congress has allowed politics to prevent the agency from adopting reasonable rules or hiring sufficient inspectors. One of the participants in the interview summed the problem appropriately by stating that OSHA was stretched too thin to think comprehensively about risk.

In Alabama, I have seen many devastating injuries at industrial and construction sites that could have easily been prevented. After these accidents and injuries, OSHA often did nothing to ensure that they did not occur again in the future. Safety is an issue that should concern all of us.

What is the purpose of our workers’ compensation laws? Why were they created? A recent article titled Workers’ Compensation: The System’s Devastating Economic Impact on Workers’ Lives provides an excellent answer:

Workers’ compensation was created for two primary purposes—to provide at least partial compensation for lost wages and to pay for medical treatment and rehabilitation services for workers injured or made ill on the job.

The problem is that our system often fails these purposes. Insurance carriers routinely refuse or delay needed medical care in an effort to save themselves money. Yet, the cost to society of leaving an injured worker unable to recover for an extended period of time is much greater. Constantly, I see denials of medical care that are simply wrong. Is it right for medical care to be refused because the insurance adjuster simply ignores the requests of the treating physician for weeks? Is it right for the insurance carrier to pick a surgeon and then subject all of their surgeon’s recommendations to some anonymous medical reviewer who may not even practice medicine? Or, to deny the requested care repeatedly because of some claim as to missing paperwork that nobody understands?

Because our system does not penalize or prevent insurance carriers from wrongfully or needlessly cutting care and benefits, the entire system is dysfunctional. The first question I am usually asked by injured workers is how quickly they can get back to regular work. Yet, needlessly delaying or denying care frustrates this. That costs the worker and his or her family tremendously. It also costs the rest of us in lost productivity. The article points out the results of allowing insurance carriers to disrupt the important goals of the system:

By compromising workers’ capacity to earn a living, injuries and illnesses unleash a cascade of destructive impacts affecting access to housing and food, stability of relationships, and poverty-related health problems.

It is unconscionable that workers’ compensation places much of the economic burden of occupational injuries and illnesses on workers and their families. This makes workers’ compensation all too often the accomplice, if not direct perpetrator, in pushing workers – especially low wage workers – into debilitating economic insecurity. Injured and ill workers report depleting their savings, sometimes taking out retirement funds or even declaring bankruptcy in their efforts to cope.

All of us need the system to work. Yet, it often does not. I have seen far too many clients who were forced into selling their possessions or declaring bankruptcy after months of begging for basic medical care so they could return to work. What’s more – the long-term trend does not look good:

Because every state has its own workers’ compensation program, there’s a dangerous race to the bottom as states compete to attract businesses by reducing workers’ benefits. In addition, the largely privatized nature of the system guarantees ever-deepening power disparities between workers and employers. This skews the system to primarily represent the interests of employers and the insurance industry, ensuring that discussions on workers’ compensation and reform initiatives are focused on the cost of the system.

Costs are important. If we are going to focus on costs, we should not simply focus on the costs to insurance carriers paying claims. They collect premiums and make a nice profit. A focus on costs should focus on the larger costs to communities of having injured workers unable to return to productive employment, unable to support their families, and unable to get the medical recovery they need.

I regularly advise my injured clients concerning the use of case nurses in workers’ compensation claims. Instead of being a helpful medical advocate, case nurses are often insurance company investigators in disguise.

How do case nurses go from helpful nurse to investigator? They begin asking questions about non-medical issues. They ask about issues such as your finances, your education, and your work history. They ask about bankruptcies and arrests. Do these topics have anything to do with your actual medical care? No. However, your answers may be useful to the insurance company looking to defend or deny your claim. You don’t have to answer them. You would be wise not to answer them.

Case nurses also often ask you to sign releases so that they can obtain records and information. They tell you the releases are needed to get your medical records so that they can help with your care. That’s not always true. If you read the releases closely, you will see that they often allow the insurance company to obtain your financial information, past employment information, school records, privileged psychological records, or medical records completely unrelated to your injury. Did the case nurse tell you that the insurance carrier in Alabama already has access to the records from the authorized physician treating your injury? If the insurance company has these records, then why do they need signed releases? You should not sign releases without getting good legal advice.

Be careful with the information you provide a case nurse assigned to your claim. Some case nurses genuinely want to help you with a complicated medical system. Unfortunately, many of these nurses handling comp claims see their job as helping the insurance company at your expense.

A group of spinal surgeons in California provides four practical tips for patients after undergoing spinal surgery. Their practical advice for patients recovering from back surgery is:

1. Don’t Smoke – I know. This is obvious advice. You’ve heard it from doctors, friends, and family. Smoking is bad. It is bad for you in a lot of ways. However, it is especially bad for you after a spine surgery. As these surgeons explain, smoking affects the healing process and can cause a spinal fusion to fail. In my law practice, I have represented many clients with failed back fusions. These clients have tremendous difficulty functioning and often suffer chronic pain problems. Clients suffering failed back syndrome can have long-term problems returning to work.
2. Exercise – Again, this advice is obvious. However, I can tell you that this is one of the biggest issues I have seen in my law practice. I have had clients who felt so much immediate improvement after surgery, that they tried to resume all normal activities without continuing their therapy and exercise program. Other clients still hurt and lose faith in their medical treatment. Either way, it is a bad idea to not follow the therapy or exercise program prescribed by the doctor. The doctor’s prescribed exercise program is designed to improve your back muscles.
3. Follow-up With the Doctor – In workers’ compensation cases, physician follow-up is always a problem. Often, the insurance company is at fault for not approving a visit. Sometimes, the insurance company fails to schedule follow-ups or, worse, fails to tell the injured worker about the appointment. Follow-up visits are important. Your surgeon needs to monitor your healing and recovery.
4. Weight Gain – Weight is a major issue. Before your injury, you were active. You went to work daily. You did things with your family. Suddenly, you were hurt and could no longer function well. Many of my clients experience major weight gain following their injury. Weight gain can cause further strain on your injured back.

Alabama’s workers’ compensation law says that you must provide written notice of your accident to your employer. Our law also places time limits on that notice. While the Workers’ Compensation Act specifically requires written notice of the accident, our courts have ruled that “actual” notice is OK. What does this mean? It means that just telling your boss can be OK. However, it can also create problems for you.

Just telling your boss is a bad idea. Why? Supervisors often “forget” later that you told them of the accident. Maybe your boss really did forget. Maybe he just wants to save money by ignoring the claim. Recently, a safety manager in Alabama was criminally convicted for providing misleading information concerning prior accidents. I can tell you that this happens frequently. If your boss “forgets” that you reported the injury, proving that you told him is not impossible but it can be very difficult. This issue often results in claims that are lost.

You should immediately report any work-related accident and injury. Alabama even has a specific form that your employer should complete. You should insist that it be completed. If your boss does not do that, then you should put the event in writing yourself and make sure your employer gets it immediately.

]]> http://www.alabamainjuredworker.com/cases-claims/i-told-my-boss-about-my-injury-is-that-good-notice/feed/ 1 http://www.alabamainjuredworker.com/cases-claims/i-told-my-boss-about-my-injury-is-that-good-notice/ http://feedproxy.google.com/~r/alabamainjuredworker/~3/NyVm_UaYrbk/ http://www.alabamainjuredworker.com/safety-issues/osha-often-loses-and-safety-suffers/#comments Wed, 02 Jan 2013 21:11:27 +0000 Jeff Blackwell http://www.alabamainjuredworker.com/?p=372

Read more »]]> The article title says it all — Even After Workplace Deaths, Companies Avoid OSHA Penalties. It’s a long article but a good read if you are interested in learning more about the impact of OSHA enforcement activities on safety in the workplace.

The story begins with a fatality at a steel mill in another state. Then, midway through the article, the author relates the story of a tragic work-related death in Alabama. In the Alabama case, a roofing contractor employee fell to his death because his employer failed to provide any fall protection and failed to guard against the fall hazards. This is a death that could have easily been prevented. The hazards were well known to the owner of the roofing contractor but not to the employees he hired and placed on the job without training. After inspecting the site of the fatality, OSHA issued fines to the employer.

The Alabama contractor’s complete failure to provide any safety protection is bad enough. Yet, the story gets worse. According to the OSHA inspector, the Alabama contractor placed safety guards at the scene after the death and then tried to lie to the inspector by claiming the materials were at the scene before the fall. I have seen employers attempt to change accident scenes in many of my past personal injury cases. In just the last few years, I have handled cases where a contractor on a Huntsville project purchased safety guards at a local hardware store after the accident to try and alter the scene. In another case, the owner of a Huntsville wrecker company purchased safety devices after a serious crush injury and tried to claim he had them before the accident. In a third case, a Decatur company claimed a warning light was prominently flashing at the time of the accident despite denials by all the other witnesses on the scene.

After being fined, the contractor in the article simply chose to ignore the penalties. He did not defend his actions. He did not pay the fines. He did nothing. His explanation for ignoring the fines — “Even if we had had the money, I would have refused to pay.” Should a contractor with so little regard for safety and human life be allowed to manage projects in the future? That’s the question I have. That’s the question we should all ask. The article answers this question. Despite no regard for safety or the authority of OSHA, the man who operated this company still works construction projects. He simply closed his company and went to work as a consultant for another contractor. He continues to be responsible for the safety and lives of workers in Alabama. Will another death or a severe personal injury occur because OSHA enforcement failed in this case?

1. Concerns about being fired or laid off as a result of the work-related accident and injury;
2. Concerns about the company treating the claim as illegitimate;
3. Delays or miscommunications in the claims process; and,
4. Feelings that the claim had been denied.

These are all important concerns. Often, employees dedicate years of hard-work and loyalty to a company. Yet, when the same loyal employees suffer a personal injury, they are suddenly treated as if they were not honest and not valued. That is wrong.

The system should work so that employees get needed medical care as quickly as possible. Too often, it does not work that way. Injured workers frequently tell me how they have waited days and weeks for the insurance carrier simply to accept their claim. Why should it take that long for the adjuster simply to pick up the telephone and verify the facts with the employer? In some industries, companies routinely deny claims whether valid or not. Injured workers frequently tell me how they have left numerous messages over the course of days and weeks with the adjuster simply to get approval for a medication or doctor’s visit. Is it too much to ask that the adjuster call the hurting employee back occasionally? Then, there are the employees who suffer an injury after years of hard work and suddenly face questions about their work history, preexisting health issues, and credibility.

I understand that some claims should be denied. However, most workers are honest. They are hard-working. They would rather work than go through the comp system. And, they deserve to be treated with respect not suspicion. The concerns which motivate injured employees to hire an attorney are real. Too often, legal counsel is needed to fight the wrongful denials and delays that prevent a successful medical recovery and return to work.

Each of these jobs carries significant safety risks. In construction, workers face a risk of fatal injuries, such as falls from heights and trench collapses. Within the healthcare industry, workers face a number of severe, nonfatal injury risks. According to the Centers for Disease Control (CDC):

Health care workers face a wide range of hazards on the job, including needlestick injuries, back injuries, latex allergy, violence, and stress.

Over the years, I have met and helped many healthcare workers who suffered severe back injuries. Such injuries are far too common. Also, they often result in severe disability. An article in the American Journal of Critical Care, by Deborah X. Brown, highlights the high risk of back injury among healthcare workers and the toll such injuries are producing. According to the article:

Every single day in the United States, 9000 healthcare workers sustain a disabling injury while performing work-related tasks. Disabling back injury and back pain affect 38% of nursing staff.

.  .  .

In the 1998 Bureau of Labor Statistics ranking of the professions at the highest risk for back injury, healthcare workers accounted for 6 of the top 10 positions. An obvious conclusion would be that these injuries are contributing, at least in part, to the current nursing shortage.

Many of the severe and disabling back injuries suffered in nursing facilities result from lifting and moving patients. The risk of significant injury is also greatly increased by the frequent staffing shortages in many facilities. Simple measures by nursing facilities to help their workers could prevent many of these needless injuries.