Today’s post is by my colleague Jon Gelman of New Jersey.

The NTHSA proposal for automatic device disabling could potentially prevent a lot of accidents caused by distracted driving.

After years of accidents in the workplace caused by the use of mobile devices in vehicles, the Federal Government has proposed universal guidelines to encourage automobile manufacturers to electronically disable these devices when a vehicle is in operation.  The enforcement of this safety-first proposal may establish a legal standard to universally bar the use of such devices in vehicles and encourage employees to have a safer working environment.

See: U.S. Department of Transportation Proposes ‘Distraction’ Guidelines for Automakers
“Issued by the Department’s National Highway Traffic Safety Administration (NHTSA), the guidelines would establish specific recommended criteria for electronic devices installed in vehicles at the time they are manufactured that require visual or manual operation by drivers. The announcement of the guidelines comes just days after President Obama’s FY 2013 budget request, which includes $330 million over six years for distracted driving programs that increase awareness of the issue and encourage stakeholders to take action. “

Image: David Castillo Dominici / FreeDigitalPhotos.net

Today’s post comes to us from our colleague Len Jernigan of North Carolina.

As a workers’ compensation lawyer, by the time clients come to me they have often already had a series of frustrating interactions with their employers, insurance adjusters and sometimes even medical professionals. Clients come to me feeling stressed by these experiences.

My adversaries are not always easy to negotiate with, and over a long career I have honed in on a few methods that seem to work best for me. When meeting with clients, I try to pass along my methods so they can better navigate some of the new and confusing situations they have been thrust into as a result of a workplace injury.

Recently I came across some advice from Psychologist Jay Carter, who offers tips that closely mirror what I pass on to my clients. The following are some of his tips for dealing with difficult people:

See it for what it is. Rather than internalize the criticism or dwell on what you might have done to deserve the attack, recognize that the nasty person has personal issues.

Get away. Exit the room or the conversation calmly, efficiently, and without saying anything you’d regret.

Diffuse with humor: This is a variant of the old saying “you catch more flies with honey then vinegar.” If you humanize yourself to your adversary, they may want to go out of their way to help you. Self-deprecating humor is often an innocuous way to accomplish this.

Silent confrontation. Rather than fire back or get into a row, just maintain eye contact and give a calm smile that indicates you know what your tormentor’s doing; eventually they’ll feel so uncomfortable they’ll stop or leave.

Come again? Asking someone to repeat their nasty remark I’m sorry, what did you just call me? Forces them to own up to what they just said and many people, embarrassed, will water it down the second time around.

Don’ts: Don’t taunt, name call or get physically violent. Also, never tell an invalidator he or she is wrong; it starts a war.

So, there you have it. The next time an adversary wants to be difficult, try these out.
Leonard T. Jernigan Jr. is the founder of the Jernigan Law firm, a highly experienced firm representing injured workers across North Carolina. An acclaimed attorney, author, and law professor specializing in workers’ compensation, Leonard T. Jernigan Jr. is listed in Best Lawyers in America and Super Lawyers.

Today’s post comes to us from our colleage Ryan Benharris of Massachusetts.

According to a recent article published in the Palm Beach News Post, approximately one in four workers under the age of thirty will become disabled before reaching their full retirement age of 67. What many workers do not realize is that Social Security will pay benefits if you become incapable of performing any substantial gainful activity.

It is astounding that 25% of the population will likely suffer a work ending disability. In a poor economy with job availability flailing and gas prices rising, it is becoming increasingly more important to know your rights to protect yourself and your family if you become unable to work. It is truly a shame that many individuals do not know that they may be eligible for benefits that could provide them with income and medical treatment that they may otherwise not have.

25% of the population will likely suffer a work ending disability

The easiest way to stay informed about your rights is to keep meticulous files of anything you receive from Social Security. Each year, the Social Security Administration sends all American citizens a breakdown of their potential benefits in the system; including a detailed list of your previous year’s earnings. This breakdown specifically outlines what benefits will become available to you if you become unable to work.

If you think that it is possible that you might be out of work for twelve months or more based on a disability, you should apply for Social Security Disability Benefits immediately. If you have not worked in the past (or even if you have), but also have limited income, you may be eligible for Supplemental Security Income which pays benefits to disabled adults and children.

If you have questions regarding Social Security Disability or SSI, please contact our office at any time.

PBNP article link

http://www.palmbeachpost.com/news/social-security-time-for-young-workers-to-look-2254026.html?cxtype=ynews_rss

Today’s guest post comes from our colleague Tom Domer or Wisconsin.

The connection between unsafe workplaces and the increased frequency of work injuries seems like a no brainer. A study released by NCCI Holdings indicated worker’s compensation claims rose by 3% during 2010 (the first rise in frequency in over a dozen years). The study attributed the increased frequency to several factors

Because of these repeat violations, OSHA cited United Contracting and placed the firm on its “Severe Violator Enforcement Program”

including increases in employment since the onset of the recession in 2008, workers possibly being less fearful of losing their jobs for filing claims, and a lack of light duty jobs to which injured workers could return because of the poor economy.

One factor not referenced is the connection between increasingly unsafe work environments and work injuries. Two recent news stories in Wisconsin underscored this connection. OSHA fined a Wisconsin contractor $150,000

for violations while working on two bridges along highways in Wisconsin. The violation is more alarming because the contractors were working under a State contract to repaint the bridges. OSHA charged that the company did not have proper scaffolding at the bridges exposing workers to falls, and in fact one worker was injured in June after falling from a scaffold at one of the bridges. Because of these repeat violations, OSHA cited United Contracting and placed the firm on its “Severe Violator Enforcement Program” which required further inspections.

OSHA also cited a painting company with a $50,000 fine for failing to properly label containers containing hazardous chemicals, failing to perform medical evaluations for employees using respirators, and failures in its painting and blasting operations. These were “repeat violations” where an employer previously had been cited for the same or similar violation. Other serious safety violations (where there is substantial probability that death or serious physical harm could result from the hazard) involve failure to provide machine guarding, guard rails, lock-out / tag-out program, and inadequate training.

Workers injured by unsafe conditions can, however, pursue a Safety Violation against their employer

I routinely receive calls from workers injured by these unsafe conditions, asking whether they can sue the employer for damages. Unfortunately, even for the most egregious violations, employers are immune from a lawsuit and the worker’s exclusive remedy is under worker’s compensation, a deal that was struck 100 years ago.

Workers injured by unsafe conditions can, however, pursue a Safety Violation against their employer, which triggers a 15% increased compensation penalty against their employer. Employers cannot insure for these penalties. Not unexpectedly, payments coming directly from employers’ pockets are contested to a hearing out of proportion to their dollar value.

With over 30 years of experience representing injured workers in Wisconsin, Tom Domer was recently named the 2011 Milwaukee Workers’ Compensation Lawyer of the Year in Best Lawyers. Tom teaches the workers’ compensation course at Marquette University Law School, providing the instruction and training for many other lawyers. He lectures frequently around the nation. He also is a prolific writer, editing the national magazine Workers’ First Watch. He has co-authored over two dozen texts, including with his son and law partner Charlie, West’s Wisconsin Workers’ Compensation Law. Tom earned all his degrees in Wisconsin.

Today’s wise words come to us from my colleague Roger Moore of Nebraska.

As I have written previously,  in Nebraska, you have the right to choose your family doctor to treat you for your work injury.  For purposes of the workers’ compensation court, that person becomes your “treating doctor.”  However, sometimes an employer or insurance provider selects a non-treating doctor for an “independent medical examination” (IME). According to the workers’ group National Association of Injured & Disabled Workers (NAIDW), IMEs are used for three reasons:

1. “to determine the cause, extent and medical treatment of a work-related or other injury where liability is at issue”
2. “whether an individual has reached maximum benefit from treatment”
3. “whether any permanent impairment remains after treatment”

When an IME is scheduled, this probably means your employer or the insurance company is trying to fight some aspect of your workers’ compensation benefits.  An IME doctor frequently bases his or her findings on what is often a very brief visit with a patient.  Sometimes they don’t even perform a physical examination before rendering their opinion.  Rarely do they issue opinions that are favorable to an injured worker.  For that reason, when an examination like this is scheduled, my policy is to file a Petition with the Court if one is not already on file.  The IME doctors can recommend medical treatment, but should not render that treatment because they are not the workers’ treating doctor and therefore do not have a “doctor/therapist-patient relationship.” If you allow them to perform medical treatment, you may have unwittingly transferred your medical care to this hired gun.

Ultimately it’s up to the Nebraska Workers’ Compensation Court (or an arbiter or court in your particular state) to determine which doctor’s opinion is more credible.

When an IME is scheduled, your attorney can be your advocate.  If you don’t have an attorney when the exam is scheduled, you should at least consult with one before attending the IME.  It’s important to ensure the IME doctor has all the relevant records before forming opinions, took a valid history, and is qualified in the medical specialty at issue.  It’s also important to contrast the findings of the IME doctor against the findings of the treating doctor.  Ultimately, it’s up to the Nebraska Workers’ Compensation Court (or an arbiter or court in your particular state) to determine which doctor’s opinion is more credible.  Often your attorney will find that the IME doctor’s practice is largely based on doing these cursory exams, which creates a bias to report findings that the insurance companies will like, often mischaracterizing the medical notes or the injured worker’s history.

Be sure to prepare for your IME with your attorney.  You should go into the appointment with the understanding that every word you use may be used against you if the opportunity presents itself.  It may be that no matter what you say the doctor has already made up his or her mind.  However, even if you do not agree with the IME doctor, you should not confront or argue with them. Let your lawyer do that in court, where it matters.

Having physical or mental impairment will not automatically make you entitled to Social Security Disability benefits.

Today we have a guest post from our colleague Roger Moore of Nebraska.

Many people believe that if they suffer from a physical and/or mental impairment and can’t find work, this means they should be on Social Security Disability.  This simply isn’t true.

 Disability is not necessarily tied to your ability to obtain work, or your inability to perform one main occupation.  The Social Security Administration (SSA) will review your employability not just in your immediate locality, but also in the state and region in which you live.

While only employment opportunities in your immediate areas are considered for workers’ compensation, the same is not true for social security disability. If you are unable to find work in your immediate area, the SSA requires you to move to a locality where a job exists.  Note that the SSA’s responsibility doesn’t include having to find you employment, but only to establish that you are physically and mentally capable of performing that job if a position became available.

Additionally, your inability to perform the work you’ve done for years or decades does not automatically qualify you for disability.  The SSA will consider skills you’ve acquired from your work life in determining whether those skills allow you to “transfer” to or perform other occupations.  It’s important to also remember that the SSA isn’t really concerned with how much those other occupations may pay.  If you can work full-time in a position that is available in your state and region, this will normally disqualify you from receiving disability.

The conditions which the SSA imposes upon a claimant are unfortunately, not always feasible or fair. Nevertheless, as it is the current state of the law, compliance is required.

Image: FreeDigitalPhotos.net

Dangerously long working hours are a problem around the world.

Today we have a guest post from my colleague Jon Gelman of New Jersey.

Since the 1960s there has been serious social concern over health problems due to long working hours in Japan. Around that time the term Karoshi, or “death from over work,” became known.

Recent national statistics show that more than 6 million people worked for 60 h or more per week during years 2000 and 2004. Approximately three hundred cases of brain and heart diseases were recognized as labour accidents resulting from overwork (Karoshi) by the Ministry of Health, Labour and Welfare (MHLW) between 2002 and 2005. Consequently, the MHLW has been working to establish a more appropriate compensation system for Karoshi, as well as preventive measures for overwork related health problems.

In 2001, the MHLW set the standards for clearly recognizing Karoshi in association with the amount of overtime working hours. These standards were based on the results of a literature review and medical examinations indicating a relationship between overwork and brain and heart diseases. In 2002, the MHLW launched the program for the prevention of health impairment due to overwork, and in 2005 health guidance through an interview by a doctor for overworked workers has been enacted as law.

Long working hours are controversial issues because of conflicts between health, safety, work-life balance, and productivity. It is obvious that we need to continue to research the impact on worker health and the management of long working hours. These problems apply not only in Japan, but here in the U.S. and all over the world.

Source: Health Problems due to Long Working Hours in Japan: Working Hours, Workers’ Compensation (Karoshi), and Preventive Measures Industrial Health 2006, 44, 537–540
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During our trip to Washington D.C. last week, we spoke to elected officials about a few laws that impact injured workers. One of the laws is a proposed amendment to The Federal Employees’ Compensation Act (FECA), the law the provides medical benefits and wage replacement to injured Federal employees. It is the federal version of the otherwise state-based workers’ compensation system. The amendment is being proposed as part of S. 1789, the Postal Service Reform Act (PSRA).

We wanted to share some highlights of why the proposed changes are harmful to injured workers. The most damaging parts of the legislation are discussed below:

1. Conversion of entitlement at retirement age 
   §302 of the bill would reduce the compensation rate to 50% of wages (for employees on total disability) and to 50% of wage-earning capacity loss (for employees receiving partial disability) once any of those employees have reached retirement age.This proposal would reduce by up to 1/3 (from 75% or 66-2/3% of wage loss to 50% of wage loss) the compensation for disabled employees who have reached retirement age. Given that many people (including members of the House and Senate and their staffs, all of whom are covered by FECA) work the traditional retirement age, this is unfair and raises issues of age discrimination. Reduction to 50% of wages is drastic, and it’s unclear why any reduction is necessary. A far better solution would be stepped-up enforcement of safety regulations, to prevent workplace accidents and drive down workers’ compensation costs that way.
2. Disability Management Review / IME
   §307 of the bill would establish mandatory second opinion medical examinations six months after compensation begins. It would require subsequent second opinion examination every 3 years.Such provision is completely unnecessary, since the Office of Workers Compensation Programs(OWCP) already reviews medical reports from treating physicians. OWCP already requires medical reports on a more frequent basis than once every 3 years. To embed into law such a mandatory multitude of examinations would result in greatly increased costs, and unnecessarily increase the incidence of conflicts in medical opinion – which then must be resolved at OWCP expense. No other area of law discounts the opinions of treating physicians’ the way OWCP does in FECA claims, and this would make that problem worse. At a minimum, the poor quality and bias of second opinion examiners should be addressed before any increase in mandatory examinations is implemented.
3. Augmented Compensation for Dependents
   §303 of the bill would eliminate the 8-1/3% increase in compensation for injured employees with dependents. The provision would take effect 3 years after enactment.While the desire for uniformity is understandable, there is no reason to simply pick the lesser amount and make that the standard amount of compensation on a “one size fits all” basis, especially given the economic hardship this would cause. Employees with dependents typically have higher living expenses to deal with, and the augmented compensation more fairly replaces their wage loss after an injury.
4. Schedule Awards (SAs)
   §304 of the bill would set “an annual salary” based on an amount OWCP calculates by taking the aggregate amount of money awarded under FECA and averaging that amount across the number of awardees. It would allow the simultaneous receipt of a lump sum for a schedule award in addition to compensation payments on the later of these dates: the date on which either the employee’s compensation has been reduced to 50% (after reaching retirement age), or the date the employee has had his or her entitlement to augmented compensation terminated.This proposal would result dramatically lower awards for many federal employees. Today about 70% of FECA benefit recipients receive awards at the 75% rate. Schedule Awards would be dramatically lower for higher earners such as law enforcement, firefighters and others who receive LEAP pay – i.e. the very employees whose benefits we should most zealously be protecting. Moreover, when coupled with use of AMA Guides 6th Edition (which greatly reduces awards), this proposal creates a “double-whammy” against permanently disabled workers. The current maximum annual wages on which to compute schedule awards is $129,517 (GS-15 step 10). Nothing justifies the – nearly 60% reduction for higher-paid law enforcement and other public safety personnel that this provision would produce. No one segment of injured employees should suffer such a huge loss of benefits, especially when their injuries often result in life-altering permanent impairments due to the dangerous nature of their jobs.
5. Vocational Rehab
   §305 of the bill would require an immediate start or a mandatory benefit reduction.Current law already provides for benefit forfeiture for non-cooperation with the vocational rehab process. Mandatory benefit reductions would result in unfair decisions where OWCP-hired vocational rehab counselors simply allege non-compliance.
6. Disability Management Review/IME
   §307 of the bill would require mandatory second opinion medical examinations six months after compensation begins and would require subsequent second opinions exams every 3 years.This provision is completely unnecessary. OWCP already reviews medical reports from treating physicians and can send the injured worker for a second opinion exam whenever it feels one is needed. OWCP also requires medicals on a more frequent basis than once every 3 years. In no other area of law are treating physicians’ opinions discounted or ignored as much as in this program, and this change would make that problem worse. At minimum, the poor quality and bias of second opinion examiners must be addressed before anything like this is implemented.
7. Election of Benefits
   §309 of the bill would prohibit switching between FERS/CSRS retirement benefits and FECA benefits for a period during which the employee was entitled to both FECA and retirement, or was paid retirement even though entitled to FECA.Disabled employees who have not reached retirement age need to be able to switch off FECA wage-loss benefits to disability retirement benefits temporarily (at any age) while eligible for FECA in order to receive both benefits at the same time. This proposed change would result in many employees simply never receiving these two benefits simultaneously for any of the limited time periods this is available to them. No matter what the FECA benefit is called, under this ill-advised proposal the employee would simply be unable to receive any FECA benefit while also in receipt of disability retirement benefits – a very substantial loss. Long-term disabilities make up only 2% of FECA recipients, so this change is not justified.
8. Field nurses
   Finally, §310 of the bill would impose sanctions for noncooperation with field nurses.Injured workers absolutely do not need another person with authority to effectively terminate benefits. Already OWCP operates outside the scope of judicial review. OWCP would need to issue clear rules outlining what a nurse is and is not allowed to do in terms of interacting with doctors, to avoid interference with the doctor/patient relationship.

We hope you will call your Senator and ask them to to support the Akaka amendment to S. 1789, the 21st Century Postal Reform Act of 2011.

Cathy Stanton and Edgar Romano with Congressman Eliot Engel (Representative from The Bronx, Rockland and Westchester).

Yesterday Paternack Tilker Ziegler Walsh Stanton & Romano partners Cathy Stanton and Edgar Romano were in Washington with the Workers Injury Law & Advocacy Group lobbying the United States Congress for the needs of injured workers.

Our good friend and colleague Jon Gelman posted this recent piece of news on his blog the other week:

A New Hampshire insurance group has been charged by the State with improperly appropriating millions of dollars of taxpayers’ funds to a workers’ compensation insurance plan. The improper allocation is described in a petition filed by the State.

To provide a bit more detail, the amount of misappropriated funds is actually estimated at upward of $100 million. The, or LGC, is a non-government, non-profit organization that provides a range of services to municipal governments. LGC is an umbrella organization with subsidiaries that offer services in areas such as finance, personnel, and legal. They also provide a range of insurance programs that municipalities and their employees may buy into.

In this case, the municipal employees thought that they were paying for LGC’s HealthTrust and Property-Liability insurance programs. Instead LGC used the funds to pay for a completely separate workers’ compensation insurance program.

LGC asserts that they did nothing inappropriate, even though what they did is clearly illegal and they used some very tricky tactics to circumvent the law. One wonders what kind of gross mismanagement of people’s money led LGC to do this. Clearly neither government contractors nor non-profit organizations are exempt from fraudulent behavior.

If you are interested in seeing the New Hampshire Secretary of State hearings, including audio recordings, visit this page.