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MORE DOMINOES FALL

More dominoes have fallen in the matter concerning former DIR director Christine Baker.

The California State Personnel Board has issued an April 9, 2019 “Special Investigation Report” (see link at bottom of this post) involving nepotism by Baker during her tenure at DIR. This report fleshes out additional details regarding many of the matters outlined in the recent report by the California State Auditor.

Several things are striking about the SPB report:

James Culbeaux, Baker’s brother, and a number of other current and former DIR employees  (identified in the report by their initials) are now ensnared in this matter and may face disciplinary action. The report notes that:

“The Director, with the assistance of high-level DIR employees, accomplished numerous appointments and transactions of highly questionable legitimacy. She received material assistance from HH, RA, JY, LC, SC, JC and JC2 in accomplishing these transactions. DIR is directed to review whether their actions warrant discipline under former California Code of Regulations, title 2, sections 8 and 249 and Government Code sections 19680 and 19682. Additionally, DIR must review whether discipline is appropriate for: (a) fraud in securing appointment; (b) inexcusable neglect of duty; (c) dishonesty; (d) violation of the Government Code or board rule; (e) violation of the prohibitions set forth in accordance with Government Code section 19990; and (f) other failure of good behavior. (Gov. Code, §§ 19572, subds. (a), (d), (f), (q), (r) and (t), 19590.) Their actions were fraudulent and involved falsification of records. The actions discredit the State civil service system and breach the trust that the public places in all State employees.”

Stunningly, the SPB has now revoked the authority of the DIR to hold career executive assignment exams and to process civil service appointments. For at least a year DIR will have to work under the Supervision of the California Department of Human Resources in hiring matters.

Moreover, the SPB report seems to acknowledge that there may be other misconduct that need to be addressed:

“The unlawful and unethical actions addressed in this report, as well as the additional concerns raised in the report by the CSA, are significant. It is not sufficient for DIR to commit to working with CalHR and the SPB to address the issues that have been discovered by external agencies. DIR must fully investigate unlawful hiring practices by DIR during the last five years. It is DIR and its employees that are most knowledgeable regarding the scope of misconduct under the former Director. DIR must not wait to be directed to take appropriate corrective action, as there remains a significant risk that other unlawful actions will fail to be remedied.”

This whole affair was not created by the Newsom administration, but is essentially a stink bomb that landed on its plate.

According to an LA Times story (see link below), current Newsom cabinet member Julie Su, the Secretary of the California Labor and Workforce Development Agency), was said to have been notified by Baker of some of the efforts on behalf of her daughter, though Su was not identified in the SPB report as having done anything wrong while she served as Labor Commissioner under Governor Brown.

In any event, Su issued a nine page April 18, 2019 response to the SPB, vowing to take the findings seriously and take corrective action.

Given that a number of DIR current and former employees are now involved in this, things could get messy. Notably, the position of Director of DIR is vacant.

As I noted in a recent blog post, it has been reported in some of the workers’ comp press that Ms. Baker has remained defiant, claiming that these matters are a hit job on her because of her involvement in workers’ comp reforms. No evidence to support that has been forthcoming.

The level of detail in the SPB report makes any assertion that she was railroaded quite incredible.

It is hard to see how Ms. Baker can remain on the Fraud Assessment Commission. That will be an ongoing thorn in the side of the Newsom administration. If she is not willing to fall on her sword and resign from the FAC, it remains for the Ricardo Lara and the Governor’s office to give her a push.

Here is the April 9 State Personnel Board report and Julie Su’s April 18, 2019 response:

SPB – DIR Rpt – 9 April 2019

The Los Angeles Times article on the matter can be found here:

https://www.latimes.com/politics/la-pol-ca-nepotism-probe-expands-20190426-story.html

A San Francisco Chronicle article on the matter can be seen here:

https://www.sfchronicle.com/politics/article/Nepotism-probe-California-official-who-hired-13799559.php

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

MORE DOMINOES FALL published first on http://lawpallp.blogspot.com

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COZY DOCTORS

The Center for Investigative Reporting recently published another revealing story on questionable workers’ comp claims handling at the Tesla factory in Fremont, California.

This April 2019 piece (see link below), by investigative journalist Will Evans, focuses on a cozy relationship between Tesla and Dr. Basil Besh, a prominent Bay Area orthopedic upper-extremity specialist. The article alleges that Besh, who apparently ran an occupational treatment facility in Fremont called Access Omnicare, catered to Tesla and interfered with treatment decisions by other doctors at the facility.

If the allegations are accurate, Besh was putting concerns of the employer (and his desire to continue getting referrals) over the best interests of the workers. Insider whistleblowers at the clinic are said to have spoken to the investigative journalist.

As the article notes:

“interviews with former clinic employees and internal clinic communications show how Tesla and Besh coordinated behind the scenes in an arrangement that financially benefited both the carmaker and the doctor, to the detriment of the injured.”

A quick disclosure: over the years Besh has occasionally treated some of my clients and my colleagues’ injured workers, but I have no personal relationship with him and can’t recall ever meeting him.

I’ve yet to see any formal response by Besh or Tesla on these particular allegations.

The bottom line of this story is all too familiar, though it comes in several flavors. Economic concerns driving workers’ comp treatment.

Sometimes the story is that employers  or insurers want to cut workers comp costs, and compliant doctors gather business by carrying out this agenda. And sometimes providers design treatment protocols based on their own financial interest rather than the best interest of the worker.

Whether one labels it provider greed, provider dishonesty, or provider fraud, it infects the system.

Here is the Center for Investigative Reporting report on Dr. Besh:

https://www.revealnews.org/article/how-tesla-and-its-doctor-made-sure-injured-employees-didnt-get-workers-comp/

Here is an article on the disciplinary problems of a doctor at Access Omnicare:

https://arstechnica.com/tech-policy/2018/12/doctor-once-hired-by-clinic-that-sees-tesla-workers-just-lost-his-license/

And here is an earlier investigative article that looked at the way Tesla was handling occupational injuries:

https://www.revealnews.org/article/inside-teslas-factory-a-medical-clinic-designed-to-ignore-injured-workers/

Julius Young

www.boxerlaw.com

COZY DOCTORS published first on http://lawpallp.blogspot.com

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Help after Amputation Injuries in Massachusetts

ABC5 News reports a Rockland industrial accident severed a 66-year-old man’s arm at the elbow after it was caught and pulled into the gears while he was working on a machine.

Massachusetts workers’ compensation lawyers know amputation injuries are common across a number of New England industries, including manufacturing and farming. While many resources for recovery exist for victims of traumatic amputation,  a comprehensive legal and medical approach is best deployed when it comes to obtaining all of the benefits to which a victim is entitled.

In this case an employee used a t-shirt as a makeshift tourniquet until medical help arrived and transported the man to South Shore Hospital in Weymouth. The Boston Herald reported that quick thinking Rockland police officers saved the man’s life by providing additional emergency medical care.

Amputation Injury Risks in Massachusetts

Amputation injuries are much more common than many people realize. The Massachusetts Amputee Coalition reports there have been more than 55,000 amputations performed at Massachusetts hospitals over the past 20 years.

It is estimated that 1 in 200 individuals in the United States will suffer some form of amputation injury during their lifetime. Outside of the military, amputation injuries are most likely to occur in traffic collisions or while operating heavy machinery, and are particularly common among industrial, manufacturing and agricultural employees.

At least 30,000 traumatic amputation injuries occur reach year in the united states.

About 2 million U.S. residents are living with limb loss.

Upper-limb amputation is by far the most common, accounting for more than two-thirds of traumatic amputation injuries.

Nearly 80 percent of traumatic amputation victims are men.

A prosthetic limb can cost as much as $50,000, and even those of the highest quality are only meant to last 3-5 years. Proper access to treatment, rehabilitation and prosthetic care is critical, with Disabled World estimating every dollar spent on rehabilitative care results in savings of $11 on welfare and disability benefits. Those who do not have access to proper prosthetics care within two years of an amputation injury are at greater risk of poverty, depression and health concerns like obesity and heart disease.

Injury Lawsuits, Workers’ Compensation and Disability after Amputation

A work injury lawyer in Boston can review all of the facts and circumstances of your injury to determine all available means of financial and physical recovery.

Worker’s compensation benefits should be available almost immediately for employees who are injured on the job. These benefits are meant to provide for medical care, rehabilitation and a portion of lost wages. However, employees dealing with moderate to severe injuries are always best served by seeking the representation of an experienced Massachusetts workers’ compensation lawyer, as these can be complex cases and employers and insurers often make it difficult to obtain all of the benefits to which you are entitled. In all cases of life-altering injuries, such as amputation, an experienced law firm should always be contacted as soon as possible after injury.

Employees who are eligible to receive workers’ compensation benefits, are generally prohibited from suing an employer for additional damages, except in cases of intentional injury or gross negligence. However, in many cases a third-party, such as an equipment manufacturer, can be found partially liable and may be sued for additional damages. Seeking a law firm with extensive experience in personal injury litigation, workers’ compensation, and Social Security Disability Insurance, can best identify and pursue all of the benefits to which your are entitled. In some cases, it may be necessary to establish a trust, so that any personal injury settlement is not counted toward your eligibility for government assistance programs, including Social Security Income (SSI).

Our work injury lawyers work closely with our team of Social Security Disability Insurance professionals to ensure our clients receive seamless access to federal disability benefits in the wake of a serious work injury. Under certain circumstances, victims of amputation injuries may automatically qualify for SSDI benefits:

Amputation of one or both feet above the ankle.

Amputation of both hands.

Amputation of one hand and one leg at or above the ankle.

Amputation of one leg at the hip (hip disarticulation).

In addition to SSDI, those who qualify with a presumptive disability may also be qualified for Social Security Income, which provides additional benefits, including Medicaid, to the low-income disabled.

For other amputation injuries, the Social Security Administration will access your “residual functioning capacity.” Your RFC will take into account functionality with prosthetic assistance, as well as your ability to work at sedentary activities. This is where having an experienced SSDI lawyer in Boston can be critical, as applicants can still be disqualified, despite an amputation injury, if the Social Security Administration determines you can perform any available job, not just a job in your career field or the work you did previously.

The Occupation Safety and Health Administration warns machines in motion create the highest risk for amputation injuries, including rotating flywheels, gears and couplings; reciprocating parts that move back and forth or up and down; and transversing parts that move along a continuum. Safe-guards are routinely built into machinery to protect operators from moving parts, although they are often removed or altered by companies to increase efficiencies.

A number of OSHA regulations aim to reduce the risk of amputation injuries, including:

29 CFR Part 1910 Subparts O and P cover machinery and machine guarding.

29 CFR 1926 Subpart I covers hand tools and powered tools.

29 CFR Part 1928 Subpart D covers agricultural equipment.

29 CFR Part 1915 Subparts C, H, and J; 29 CFR Part 1917 Subparts B, C, and G; and 29 CFR Part 1918 Subparts F, G, and H cover maritime operations.

OSHA also publishes a comprehensive outline of machine-guarding standards.

An amputation injury is life-altering. However, comprehensive recovery options are available, including world-class improvements in prosthetics developed over the last 20 years for military veteran amputees. Seeking qualified legal help at the outset of injury can put you and your family in the best position to make a complete financial and physical recovery. At the Law Offices of Jeffrey S. Glassman, we are dedicated to throughly investigating the causes of your accident and pursing all of the damages to which you are entitled under the law.

If you or someone you love has been injured a Boston work accident, call for a free and confidential appointment at 1-888-367-2900.

More Resources

Industrial Amputation Injuries, Occupation Safety and Health Administration.

  The post Help after Amputation Injuries in Massachusetts appeared first on Massachusetts Workers Compensation Lawyers Blog.

Help after Amputation Injuries in Massachusetts published first on http://lawpallp.blogspot.com

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REMEMBER IBR?

After the 2012 reforms most of the attention went to IMR and the huge volume of UR disputes that wound up on the doorstep of Maximus, the DWC’s IMR provider.

IBR, on the other hand, has gotten almost no attention.

One would have thought that there was little friction between payors and medical providers over bills.

The DWC has now produced a 2018 report that analyzes IMR from 2013 to 2017.

You can see the report here:

https://www.dir.ca.gov/dwc/IBR/Reports/IBR-Report-2013-2018.pdf

IBR applications peaked in late 2016 but fell substantially in 2017. By the 4th quarter of 2017 there were only 466 IBR applications filed.

When an IBR application was filed, the medical provider won 55% of those disputes (i.e. it was determined that additional reimbursement to the provider was warranted).

The report concludes that :

“Now in its sixth year, IBR continues to provide an effective process for resolving billing disputes for payment of medical and medical-legal services in the workers’compensation system.”

What is unknown is how many disputes exist between medical providers and claims administrators where the provider does not bother to seek IBR review. Perhaps some providers either don’t know about IBR or don’t want to be bothered.

Yet, unlike IMR, one would have to give IBR a positive report card.

Stay tuned.

Julius Young

www.boxerlaw.com

  REMEMBER IBR? published first on http://lawpallp.blogspot.com

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L’AFFAIR BAKER

Most of California’s major newspapers have covered the controversy surrounding former DIR head Christine Baker and the report of the California State Auditor which I outlined in my last post (see some links to the newspaper coverage below).

According to a LA Times report, Governor Newsom’s office and new Insurance Commissioner Ricard0 Lara are not happy.

The LA Times indicated that “A Newsom spokesman declined Friday to say whether he would take action against Baker, but questioned her remaining on the Fraud Assessment Commission.”.

Further, the LA Times noted that:

“Although the fraud panel is appointed by the governor, it operates in the office of state Insurance Commissioner Ricardo Lara, who also voiced concerns through a spokesman about Baker staying in her post.

“While the commissioner does not make appointments to the Fraud Assessment Commission, given the seriousness of these allegations he has severe reservations about Ms. Baker’s capacity to continue service,” said Byron Tucker, a spokesman for Lara.”

How all of this is perceived by the political establishment and the Governor’s people may determine whether Baker is asked to leave the Fraud Assessment Commission.

And at the same time these issues are in play as a former DIR investigator, Socorro Tongco, has a pending State Personnel Board action and a wrongful termination lawsuit in Alameda County Superior Court.

It’s messy.

Frankly, some parts of the story would make good material for a novel.

Baker is pushing back with her side of the story. Readers can see it by clicking on the links at the bottom of this post. Several people have suggested to me that Baker is “playing to her base” in putting her statements on the record. Clearly she does not want to go lightly.

What I do find particularly interesting (putting aside the question of whether her her daughter’s performance has been mischaracterized, and that there was a cabal that wanted to take her down) is the allegation Baker seems to be making that she was a target because of her role as a workers’ comp reformer.

Nothing I have yet seen puts together anything credible on the point.

This blogger has no personal relationship or knowledge of the individuals at DIR who seem to have been involved in the events discussed by the State Auditor.

But if Baker is alleging that the auditor’s report is all “fake news” and some sort of grand conspiracy to take her down because of her involvement in various workers’ comp reforms, I think she owes the workers’ comp community more evidence and more explanation.

I have worked against Baker on some issues and with her on others (including being asked to participate in some of the meetings the led to the anti-fraud reforms). She is obviously a very capable individual and as I noted in my last blog, receives much gratitude from some in the employer and insurer community who like the results of the 2012 reforms.

I think it only  fair to publish her side of the story (see below).

But that can only take you so far.

If there was a grand conspiracy to take her down, where’s the beef?

Here is the Los Angeles Times article on the response to the allegations, titled “Gov. Newsom and others question continued state post for ex-administrator accused of nepotism”:

https://www.latimes.com/politics/la-pol-ca-fraud-commissioner-nepotism-20190329-story.html

The San Francisco Chronicle coverage written by business columnist Kathleen Pender can be seen here:

https://www.sfchronicle.com/business/networth/article/Major-California-labor-official-accused-of-13728257.php?cmpid=gsa-sfgate-result

The article in the Workers’ Comp Executive can be seen here:

https://www.wcexec.com/article/auditors-findings-in-dir-audit-challenged/

Here is the letter sent by Baker (“Christine Culbeaux”) to some of her supporters:

Baker-Friends-Letter

And here is what Baker provided to the Workers’ Comp Executive:

Baker-Rebuttal to WCExec

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

L’AFFAIR BAKER published first on http://lawpallp.blogspot.com

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A SORDID TALE

With yesterday’s release of a report by California State Auditor Elaine Howle, lingering questions have now been answered about the 2018 sudden departure of Christine Baker from her post as Director of the California Department of Industrial Relations.

Howle’s report details a pattern of nepotism, lies, favoritism, manipulation, retaliation, creation of a culture of fear and even racial animus by Baker. The report can be seen at the bottom of this post.

Baker’s 2018 departure was so sudden that most stakeholders were left scratching their heads and wondering if there was a back-story to the departure. Brown Administration officials circled the wagons and there was little credible information available, though this blog and some of the workers’ comp press had unconfirmed reports. Eventually Workcompcentral published on the allegations after a whistleblower contacted their newsroom.

A 2018 notice of an upcoming audit to be published on the state auditor’s website disappeared, and the auditor office refused to confirm anything at that time.

An apparently related controversy had developed when it was revealed that DIR employees had been ordered to read e-mails to look for whistleblowers. As part of this, e-mails between the Katherine Zalewski, chairperson of the WCAB and a former DIR employee were accessed.

It turns out that Ms. Howle’s office had been doing an in-depth investigation starting in 2015, looking at over a million DIR e-mails. Many interviews were conducted, and many of those interviewed indicated that they were concerned about retaliation.

Most of the events center around how Baker handled the employment of her daughter, Julianna Baker, at DIR. Among other things, the daughter lied about her time and assignments and is said to owe the state a six-figure sum. But the pattern is far beyond that of a protective mother (a helicopter or bulldozer parent) trying to help her daughter succeed. Improprieties regarding another employee was also key.

The story is one of a workplace culture that so concerned Howle that she decided to file a confidential report with the DIR’s oversight agency. That would have been with David Lanier, at the time a member of Jerry Brown’s cabinet and the Secretary of the California Labor and Workforce Development Agency. Lanier is now on the SCIF Board of Directors.

Here is what Howle says happened:

“In April 2015, my staff deemed credible allegations involving improper governmental activities by a department director and her daughter who worked at the same department. Because of the limited scope of these initial allegations against the department’s highest ranking officer, and as state law allows, my office formally referred the case to the department’s oversight agency for it to complete further investigation by June 2015. In that written referral, we cautioned agency officials that, by law, they must keep confidential the existence and details of the complaint, and that they could not disclose any information provided by my office or obtained from reviewing or investigating the allegations.

Nevertheless, we later learned that, within just a few weeks of our issuance of that confidential referral to the oversight agency, the agency secretary directly violated the law by sharing with the director information of the impending investigation, which is evidenced by an email between the director and the agency secretary. In that email, the director defended her daughter’s presence in the department and speculated that the allegations came from within a particular ethnic group of employees. A few hours later, the director further shared with her brother, who also worked at the department, her email to the agency secretary, and the director indicated to the brother that he should delete the email after reading it.”

In further criticism of the way Lanier’s agency handled the matter, Howle notes that: 

“In addition to the agency secretary’s clear disregard of confidentiality requirements, the oversight agency failed to provide its final investigative report to us until a full year after the 60‐day deadline required by law. During that year, my office received additional allegations of other instances of the director’s improper governmental activities. Given the increased number and scope of the whistleblower accusations and our heightened concern about confidentiality and protecting whistleblowers against retaliation, we decided that the oversight agency’s response to the investigative request was insufficient to fully address the allegations. Therefore, we incorporated the agency’s findings into a separate and larger investigation that my staff conducted.”

All of this makes it perplexing as to why, knowing all this, Baker was pointed to the Fraud Assessment Commission in the waning days of the Brown Administration. That would seem to have taken quite an act of chutzpah by those in the Brown chain of command, knowing that this issue with Baker and the Howle investigation was still smouldering.

While there is a reservoir of admiration and gratitude by some of the key workers’ comp stakeholders for Baker’s role in forging the 2012 reforms and the regulatory aftermath, one would have thought that the circumstances of her departure and the pending State Auditor investigation would have made her radioactive for appointment to any further official position.

All of this leaves an overhang for the Newsom Administration to deal with. Howle’s report notes a number of areas that still need attention at DIR. Since at the moment there has been no announced Newsom appointment to DIR, this falls to Julie Su, the new Secretary of Labor and Workforce Development. Here is what Howle says about the situation now:

“After we issued the nonpublic report in May 2018, we expected that the agency would take swift and appropriate disciplinary action against the director and associated subjects, protect those who cooperated with the investigation, and implement our recommendations to prevent future improper activities. Despite the agency providing its mandated monthly updates to us, we do not yet see evidence that the agency has acted with appropriate rigor to remediate the effects of the director’s behavior; in fact, since we informed the oversight agency of our findings, it has not fully implemented any of the recommendations we made in the report. As of March 2019 and excluding duplicative recommendations, the agency has four pending recommendations, four partially implemented recommendations, and two recommendations we deemed resolved because impacted employees resigned or retired from state service.”

Here is the State Auditor report:

ChristineBakerAuditorReport

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

  A SORDID TALE published first on http://lawpallp.blogspot.com

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THE VIOLENT ACT EXCEPTION

How has the law been developing on the “violent act” exception to California Labor Code 4660.1(c)(1)?

That’s an issue I had occasion to look at recently as I prepared for a presentation on a panel with defense attorney Jake Jacobsmeyer at the yearly Montarbo Seminar in Sacramento. We spoke at the invitation of Red Bluff based defense attorney Rich Montarbo, whose office sponsors the conference.

Labor Code 4660.1(c)(1) is the section of the 2012 comp reforms which for post 1/1/2013 dates of injury prohibits increased PD ratings for sleep dysfunction, sexual dysfunction or psychiatric disorder arising out of compensable physical injury. The section does not apply to “direct injuries” (as opposed to compensable consequence injury) and does not prohibit PD awards in so called mental-mental injuries. Moreover, the section does not prohibit awards of medical treatment or temporary disability for compensable consequence psyche, sleep or sexual dysfunction injuries.

What LC 4660.1(c)(1) does do, however, is prevent impairment “add-ons” for post 1/1/13 claims. Sleep and sexual dysfunction “add-ons” are not to be rated, though it should be noted that if the sexual impairment is directly caused by the injury, it may be rated under the AMA Guides. That was the situation in Montenegro (see City of Los Angeles v. WCAB) (2016) 81 CCC 611 (prostate surgery for industrial cancer was directly caused by the industrial injury  and thus PD for sexual dysfunction was covered).

Labor Code 4660.1(c)(1) has exceptions, however. One is the “catastrophic  injury” exception which has really yet to be definitively defined by the WCAB and the courts. There is at least one case I’m aware of that is going up on reconsideration regarding that issue (Maria Martinez v. Vasona Creek Healthcare Center; ADJ9343255) but there is no ruling yet from the WCAB, let alone the Court of Appeal.

A body of law has developed around the other exception, however. That is the “violent act” provision of LC 4660.1(c)(2). That section allows a psychiatric impairment rating for psychiatric compensable consequences (but not for sleep and sex) where the worker was “a victim of a violent act” or had “direct exposure to a significant violent act within the meaning of 3208.3”.

What could best be termed the “leading case” so far is a 2016 WCAB panel decision, Deborah Larsen v. Securitas (81 CCC 770) (Commissioners Newman, Sweeney & Lowe). In Larsen the worker was doing security rounds in a parking lot when she was hit from behind by a car, knocking her to the ground and causing a loss of consciousness. As a result, there were nightmares, a cognitive disorder and a reactive depression.

In Larsen the WCAB panel defines “violent” by using the Black’s Law Dictionary definition:

“1. Of, relating to, or characterized by strong physical force<violent blows to the legs>, 2. Resulting from extreme or intense force <violent death>, 3. Vehemently or passionately threatening <violent words>.”

Using that definition, the WCAB found that the circumstances qualified as a  “violent act”  for purposes of the LC 4660.1(c)(2) exception. In doing so they rejected the argument that a  victim of a “violent act” must be a victim of a criminal or quasi-criminal act, noting that there are a number of other sections under the California Education Code and California Government Code that use the term acts “perpetrated” on a victim but LC 4660.1(c) does not use such terminology.

Other cases have followed the logic and result in Larsen. They include the following:

•Torres v. Greenbrae (2017 Cal.Wrk.Comp. P.D. LEXIS 230) (tree trimmer was suspended from rope with harness when branch gave way, causing him to fall and hit head and body against tree multiple times as he fell). In Torres there was indication that the psyche disability might be caused directly by events of employment or as a consequence of the physical injury, or as a combination of the two. But in any event, the violent act exception applied.

•Russell Madson V. Michael J. Cavaletto Ranches (2017 Cal.Wrk.Comp.P.D.LEXIS 95) (driver was hauling lemons; truck overturned, pinning him aside down, requiring jaws of life to extricate him)

•Allen v. Carmax (2017 Cal.Wrk. Comp.P.D. LEXIS 303) (Commissioners Razo, Brass, Zalewski) (worker was test driving a reconditioned used-car in Los Angeles when brakes failed, causing him to jump curb and crash into freeway support column; physical injuries caused need for knee surgeries and possible spinal surgery). In this case the WCAB applied the violent act exception despite defendant’s argument that car accidents are so common that they were not intended to come within the exception. The panel also rejected the argument that the injury must stem from a criminal or quasi-criminal act.

•Lopez V. General Wax (2017 Cal.Wrk.Comp.P.D.LEXIS 291) (Commissioners Newman, Brass & Razo) (worker’s index finger was amputated in machine; worker had PTSD and depressive disorder). The panel could not determine whether the psyche impairment was the direct result of injury or a compensable consequence, but it did not matter because it came within the violent act exception.

•Guerrero v. Ramcast (2017 Cal.Wrk.Comp. P.D. LEXIS 285) (Commissioners Sweeney, Razo and Lowe) (mechanic lost balance, hit foot controls and thereby caught hand in punch press, amputating several fingers). Defendant argued that only “sudden and extraordinary” events qualify and that the events themselves were not “abnormal force” but just from the ordinary operation of the much press. Nevertheless, the WCJ and WCAN found the injury came within the violent act exception to LC 4660.1(c)(1).

An example of what was held to miss the “violent act” standard is Zarifi v. Group 1 Automotive (2018 Cal. Wrk.Comp.P.D.LEXIS 300). In Zarifi the worker accidentally walked into a glass wall but did not break the glass, had no loss of consciousness and no bleeding. The commissioners agreed with the WCJ that this was not a “violent act”.

With these cases the WCAB has given litigants a pretty good roadmap as to the kinds of situations that will come within the “violent act” exception. As Jake Jacobsmeyer noted at the Montarbo seminar, however, there is no appellate court determination on the standard so far, so caution is indicated.

And some 7 years after the enactment of SB 863 we still have no answer on what constitutes a “catastrophic injury”, the other exception to LC 4660.1(c)(1).

Stay tuned.

Julius Young

www.boxerlaw.com

    THE VIOLENT ACT EXCEPTION published first on http://lawpallp.blogspot.com

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FRANK BRASS PASSES

Former WCAB Commissioner Frank Brass passed away yesterday.

Brass had been in declining health for several years and had quietly retired from the WCAB at the start of 2018.

He was a great guy and a dedicated public servant during his time on the board.

In case you missed it, here is what I wrote last year after learning of his retirement:

“Frank Brass recently retired from the WCAB after over a decade and a half as a WCAB Commissioner.

The retirement, which occurred at the end of January 2018, has not been widely publicized.

Workerscompzone wishes him all the best in his well-deserved retirement.

Brass was appointed to the WCAB in 2001 and was reappointed in 2008 by Governor Schwarzenegger.  Then in 2014 he was reappointed by Governor Brown.

Brass started his career with several San Francisco-based labor law firms, Neyhart, Grodin and Beeson and the Law Offices of Charles P. Scully.

I met him years ago when he was doing defense work at several defense shops, as a partner with Wayne Luttringer and then with John Parente and Ken Christopher. As an attorney Frank was direct, honest and practical. Although he represented employer interests, Brass always appeared to be interested in the welfare of the worker who was the subject of the litigation.

Brass has had a friendship with California Democratic political powerhouse John Burton that goes back to youthful days in the City. As a result, he secured an appointment to the WCAB and began a long career there.

From 2001 to 2018 he was involved in interpreting many of the changes in the law that were enacted under the massive Schwarzenegger and Brown reforms.

One of his colleagues described him thusly in an e-mail to me: “A true gent, smart and a keen sense of humor. And kind, very kind.”

Brass and I share a handful of good friends and he is a beloved figure for many.

If one were handicapping the opinions of the Commissioners during his time there, Brass was perhaps not the most “liberal” or “conservative” member of the WCAB. Others might disagree (and this is an unscientifically tested statement), but I saw him as a sort of centrist Anthony Kennedy type figure who would look at cases on the merits  without any particular ideological slant and at times cast a swing vote where there was a divided panel.”

Frank will be missed.

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

  FRANK BRASS PASSES published first on http://lawpallp.blogspot.com

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Immigrant Rights, Whistleblower Protections in Massachusetts Workers’ Compensation Claims

The U.S. Department of Labor is suing a Boston construction company for allegedly retaliating against an injured worker by having him arrested by immigration authorities. Our Boston work injury attorneys know immigrants are among the most vulnerable members of the workforce. Often working dangerous jobs, for law pay, off the books with no benefits. We want you to know our laws offer both financial help and legal protection if you suffer injury on the job, regardless of your immigration status.

The complaint was filed last month with the U.S. District Court for the District of Massachusetts and alleges Tara Construction Inc. caused an employee to be arrested and detained by U.S. Immigration and Customs Enforcement after the man was injured in a fall on the job. He was seriously injured after falling from a ladder in March 2017 and the Occupational Safety and Health Administration initiated an investigation into the workplace accident. Shortly thereafter he was arrested by immigrations officials as he left the work office.

Section 11(c) of the Occupational Safety and Health Act protects workers who report an injury to an employer or who cause an OSHA inquiry. Law enforcement accounts indicate a company representative told a police officer when the employee would be present and that there were no objections to the arrest. Text messages back up those claims, according to the government’s case.

This case will likely hinge on whether the company tipped law enforcement to the employee’s immigration status, as the company will no doubt argue it simply cooperated with law enforcement. Our Boston workers’ compensation lawyers know such cases of attempted retaliation are not uncommon, which makes it even more critical to assert your rights under the law at the outset of an injury on the job. Whether you are protected by workers’ compensation insurance or have to pursue a personal injury lawsuit, finding qualified legal help at the start of your case is the best thing you can do to protect your rights.

In this case, OSHA’s Whistleblower Protection Program concluded there was enough evidence to cite the company for retaliation against an employee for protected activity.

“The OSH Act prohibits retaliation against employees for exercising their workplace rights, regardless of the employees’ immigration status,” said Regional Solicitor of Labor Maia Fisher. “This case demonstrates that through legal action the Department promotes safe and healthful workplaces free from unlawful retaliation.”

Workers’ Compensation & Whistleblower Protections

The company could be liable for paying backpay, as well as interest and compensatory and punitive damages. OSHA protects employees who have been injured or who otherwise report a work injury or dangerous condition.

OSHA’s whistleblower protection provisions are outlined in 22 statutes and protect employees who report violations, including 29 U.S.C. §660 Occupational Safety and Health Act (OSH Act), Section 11(c), which covers most of the U.S. workforce. Other statutes offering whistleblower protections include the Affordable Care Act, Asbestos Emergency Response Act, FDA Food Safety Modernization Act, National Transit Systems Security Act, Safe Drinking Water Act, and the Sarbanes-Oxley Act, a financial security act passed in the wake of the Great Recession.  Some statutes offer workers additional protections in certain industries, including the Federal Railroad Safety Act, Surface Transportation Assistance Act and the Seaman’s Protection Act.

Massachusetts Work Injury Help for Immigrants

Your immigration status does not matter when it comes to being injured on the job. Under Massachusetts law, employees injured on the job are almost always entitled to workers’ compensation benefits, regardless of immigration status. However, in far too many cases companies will hire contract workers, day laborers or temporary employees to avoid having to provide workers’ compensation benefits. Our Boston work injury lawyers note that appears to be the case in this instance, as WBUR News reports the company did not have workers’ compensation insurance in place at the time of the accident.

The Massachusetts Workers’ Compensation Act (M.G.L. Ch. 152)  provides injured employees medical benefits and lost wages after an in the job. In exchange, employees forfeit their rights to sue for additional injury compensation in most cases. Employers who do not provide workers’ compensation coverage may be held strictly liable for resulting injuries.

WBUR News reported Boston Mayor Marty Walsh is asking questions of his police department in the wake of the Tara Construction incident. Two Boston detectives were involved in the arrest in cooperation with ICE. The ACLU has made a public records request for information about any other cooperative immigration enforcement efforts between ICE and the Boston Police Department. In an interview, Mayor Walsh said Boston police should not be enforcing immigration laws unless a serious felony is involved.

Immigrants are particularly vulnerable to injury while working in the construction industry. The Census of Fatal Occupational Injuries found immigrants were 15 percent more likely to be fatally injured, which is significant considering construction is already the nation’s deadliest occupation. Two-thirds of immigrants killed on the job were born outside the country. Exacerbating the risks is the underreporting of injuries, a common lack of safety training and equipment, language barriers and a culture too often not used to having rights in the workplace.

This case offers a number of lessons even for those employees whose immigration status is not in question. Too often, employees fail to seek qualified legal help because they don’t believe their injury is serious enough, or because they don’t understand all of the issues that may arise. Is your employer insured? It could be months before you realize the bills are not getting paid. Can you count on keeping your job if you are out a lengthy period of time? Are you certain your injury will not reoccur or become more debilitating over time?

We believe injured workers should have immediate access to experienced legal help. By asserting your rights at the outset of a claim, you will stand the best chance of making a complete physical and financial recovery. And, as this case illustrates, protections are in place in the event your employer has a problem with it.

If you or someone you love has been injured a Boston work accident, call for a free and confidential appointment at 1-888-367-2900.

Additional Resources:

Worker Stuck In Machine, Killed At Sharon Sheet Metal Company, July 12, 2018, CBS Local Boston

More Blog Entries:

Third-Party Liability in Massachusetts Work-Related Injuries, Deaths, March 13, 2018, Boston Workers’ Compensation Attorney Blog

The post Immigrant Rights, Whistleblower Protections in Massachusetts Workers’ Compensation Claims appeared first on Massachusetts Workers Compensation Lawyers Blog.

Immigrant Rights, Whistleblower Protections in Massachusetts Workers’ Compensation Claims published first on http://lawpallp.blogspot.com

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A QME PROGRAM AUDIT

So far 2019 has been a sleepy year for California workers comp developments.

But that may be changing.

The California Legislature’s Joint Legislative Audit Committee has now approved a request that the California State Auditor investigate the DIR/DWC’s oversight of the California QME system. The audit request, filed by California Assemblywoman Blanca Rubio (D-West Covina) can be seen here:

WorkersCompBlancaRubioAuditRequest

Rubio’s February 21. 2019 letter lays out many of the recent problems with the QME system. These include dwindling QME numbers, longer wait times to see QMEs, and alleged application of “underground regulations” to delay and/or deny reappointment to scores of QMEs. Her request also alleges irregularities in the reappointment process, charging that some stakeholders may have improperly influenced the QME reappointment process and actions by the state-contracted IBR vendor.

A recent letter from DWC Administrative Director George Parisotto does not oppose the audit request but does suggest “a narrowed and targeted scope”. Parisotto’s letter can be found here:

WorkersComp2019Audit(ParisottoLetter)(3.1.19)

On the issue of the dwindling number of QMEs, Parisotto makes an interesting observation about the overall problem of not enough doctors in California. He claims that the ratio of QMEs to panel requests is 2% whereas the ratio of doctors in California to California residents is .3%.

This may be true, but is small comfort to many workers and attorneys who see substantial delays in scheduling a QME and getting a report. The workers’ comp system is experiencing an epidemic of cases where multiple panels need to be issued in order to receive an exam and report, creating delays and frustration.

I’ve written about QME issues on a number of occasions. For example, in 2017, I covered the simmering dispute about QME recertification and the lawsuit filed by several physicians whose certification was delayed or denied:

http://www.workerscompzone.com/2017/09/28/see-ya-in-court/

After widespread stakeholder input on possible QME payment changes, RAND issued a 2018 draft report that discussed possible changes to the QME payment system:

https://www.rand.org/pubs/working_papers/WR1279.html

My commentary on that is here:

http://www.workerscompzone.com/2018/12/05/rand-posts-medical-legal-study-draft-report/

So the takeaway is that we have a troubled QME system which is in flux. How fee schedule changes are designed and implemented could accelerate QME departures from the system or help stanch the exodus.

The State Auditor’s report will be a welcome addition to analysis of the current QME system.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

A QME PROGRAM AUDIT published first on http://lawpallp.blogspot.com

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Injured Health Care Workers a Focus of Safety Efforts

Regulators are focusing on work-safety issues within the health care industry, where more workers suffer illness or injury than in any other career field.

Common risks include contact with hazardous chemicals or biological materials; exposure to radiation, x-rays and radioactive material; ergonomic and lifting hazards; violence; and exposure to contagious disease. The Occupational Safety and Health Administration reports more than 650,000 health-care employment injury cases are reported annually, some 25 percent more than manufacturing, which is the industry sector with the second-highest number of on-the-job injuries or illnesses.

Our Boston workers’ compensation attorneys know it’s not just medical staff who are at risk, as non-medical personnel, including maintenance, housekeeping, groundskeeping, food service and administrative staff, also face above-average risk. However, nurses, aides, orderlies and attendants are at particularly high risk. These employees reported musculoskeletal disorders at a rate of 249 per 10,000 workers, compared to the national average of 34 injuries per 10,000 workers.

Health Care Injury Claims in Massachusetts

Healthcare is a demanding occupation. They physical and mental demands and around-the-clock schedules make re-injury and disability a common occupational hazard. Contact with an experienced work injury lawyer in Boston can be done without cost and offers the best chance to protect your rights and your livelihood while recovering from injury. Many healthcare workers suffer repeat claims over the years, which can complicate a work-injury claim in cases where a worker’s compensation insurer challenges an injury as pre-existing.

Under MGL 152 (Massachusetts Workers’ Compensation Act), workers who aggravate a pre-existing condition that was eligible for workers’ compensation benefits will be covered, even if the new injury occurs on the job for a different employer. However, if a pre-existing condition is deemed to be not work related, the new injury will be compensable only to the extent it is found to be a major (but not necessarily predominant) cause of the need for treatment. Thus, even in cases where you do not believe your injury is overly serious, being represented by an experienced law firm will leave you in the best position to protect your rights — both now and the event of future work injury.

In addition to making sure you present a comprehensive claim in a timely fashion, your workers’ compensation lawyer can assist with determining the full economic value of lost wages, rehabilitation and current and future medical expenses. In many cases, healthcare workers are pressured to return to work before they are ready, which can result in additional injury or even permanent disability. Having an experienced law firm at your side from the start of your claim can protect your job and your career reputation while affording you enough time to make a complete recovery.

It’s not necessary to prove an employer was at fault in order to collect workers’ compensation benefits. But proving causation is often still an issue as you and your attorney must prove your injury was caused during the course and scope of your employment.

In far too many cases, employees also face termination, which can result in loss of health insurance benefits. While Massachusetts General Laws Chapter 152, Section 75B(2) offers protection to workers who are terminated in retaliation for filing a workers’ compensation claim. The federal Family Medical Leave Act (FMLA) also offers protections to workers for up to 12 weeks in most cases. COBRA continuing health coverage may also be an option, although it’s often prohibitively expensive.

Health Care Injury Risks

Work-injury claims in the health-care industry commonly include:

Chemical exposure: Healthcare workers are exposed to a wide array of dangerous and deadly chemicals and compounds on a daily basis, including ethylene oxide, formaldehyde, glutaraldehyde, radiation, lasers and hazardous drugs. Safe-handling and safety training are keys to preventing injury and OSHA provides broad resources to employers and employees seeking to reduce the risks.

Infectious disease: Healthcare workers face exposure from direct or indirect contact. Contact transmission is most common through droplet or airborne exposure. Contact transmission includes exposure to contaminated items, like bed rails, exam tables and door knobs. Two examples of contact transmissible infectious agents include Methicillin-resistant Staphylococcus aureus (MRSA) and Vancomycin-resistant enterococcus (VRE). OSHA regulations aimed at reducing infectious disease exposure include: Bloodborne Pathogens standard (29 CFR 1910.1030); OSHA’s Personal Protective Equipment standard (29 CFR 1910.132) and Respiratory Protection standard (29 CFR 1910.134).

Patient Handling: More than 27,000 healthcare workers suffer musculoskeletal injury handling patients each year. The number of nursing aides, orderlies and attendants who have missed work because of such injuries has increased 10 percent in recent years. Patient handling most associated with injury includes transferring from toilet to chair, transferring from chair to bed, transferring from bathtub to chair, repositioning from side to side in bed, lifting a patient in bed, repositioning a patient in chair, or making a bed with a patient in it. The obesity epidemic is partly to blame, as is the growing aging population and the diversity of treatment facilities, which include not only long-term care facilities but also acute care and home-healthcare.

Workplace violence: Healthcare workers face more risks of violence than nearly any other profession besides law enforcement. From threats and verbal abuse, to intimidation, physical violence and even homicide, more than 11,000 healthcare workers are victimized by violence in the workplace each year. OSHA is actively working with the U.S. Department of Health and Human Services and the National Institute for Occupational Safety to assist healthcare facilities in implementing violence prevention programs.

As we report on Boston hospital injury page, workers’ compensation benefits entitle you to coverage of cost of all medical bills and treatment associated with the injury, lost wages, reasonable cost of travel to and from medical appointments, and access to temporary or permanent disability benefits for partial or total disability. Burial expenses and death benefits are also provided under the law. While the Workers’ Compensation Act is a no-fault system meant to provide timely benefits to injured workers, securing all of the benefits to which you are entitled is never assured without experienced legal help.

If you or someone you love has been injured a Boston work accident, call for a free and confidential appointment at 1-888-367-2900.

  The post Injured Health Care Workers a Focus of Safety Efforts appeared first on Massachusetts Workers Compensation Lawyers Blog.

Injured Health Care Workers a Focus of Safety Efforts published first on http://lawpallp.blogspot.com

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ITS ABOUT TIME

The California Division of Workers’ Compensation has now announced free online access to medical evidence-based treatment guidelines for medical providers (see link to the press release below).

It’s about time.

Over a decade ago, California began adopting medical treatment protocols for work injury treatment, largely based on the ACOEM guidelines from the American College of Occupational and Environmental Medicine. This became the set of protocols known as MTUS. Though rebuttable, they are the bible of workers’ comp medical treatment.

But for over a decade many of the doctors treating workers’ comp patients have not had access to the guidelines unless they paid for access. Many medical providers have not paid to subscribe to the guidelines. This is one of the factors that has led to an odd situation where we frequently see requested treatments denied by “Utilization Review” (UR) and “Independent Medical Review” (IMR) on the basis that the reviewer claims that the treatments do not comport with the guidelines.

In some instances the UR and IMR reviewer may not have the relevant medical records or sufficient information to determine whether the requested treatment is guideline compliant.

But in some cases the treatment probably isn’t guideline compliant. And physician lack of awareness of the guidelines may be a factor. How much of a factor is hard to quantify, but if a big swath of the treating community doesn’t have easy access to the treatment guidelines, it is clearly a problem.

This is a problem that in truth should have been a priority years ago.

But now it appears to be moving toward resolution. Providers will be able to register to get free access to the site, maintained by the Reed Group which maintains the guidelines. This will include access to online web-based training.

Ultimately it would be a welcome step if adjusters, injured workers and attorneys all had free access as well. We’re not there yet, but if treatment is going to depend on guideline compliance, those affected should have easy access as well.

Here is the link to the DWC announcement:

https://www.dir.ca.gov/DIRNews/2019/2019-14.pdf

Stay tuned.

Julius Young

www.boxerlaw.com

ITS ABOUT TIME published first on http://lawpallp.blogspot.com

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CAAA SAN DIEGO

The California Applicants Attorneys Association winter convention is always one of the largest gatherings in the California workers’ comp industry.

The convention brings together a large number of the prominent applicant attorney firms as well as key stakeholders and policymakers. This year’s conference, held in San Diego, was no exception.

The January 2019 conference came at a time of some uncertainty regarding the direction of California workers’ comp. Governor Newsom has yet to announce his full policy-making team. If Newsom has any workers’ comp reforms or priority issues in mind, it is known only to him and his closest confidants.

One of the things that CAAA does exceedingly well is sponsoring excellent educational panels. I’ve been to scores of CAAA conventions and have to say that the level of preparation and analysis has never been better than this year’s conference.

That’s important, because CAAA’s educational efforts lift the level of lawyering that disabled workers depend on.

Attendees hear from some of the best and brightest attorneys in the field. Recent cases and theories are discussed. Attorneys often leave inspired by what they have heard, and empowered to take approaches that will benefit their worker clients.

Future blog posts will explore many of the primary topics explored during the CAAA panel sessions. But here is a quick snapshot of some of the “hot” topics that were considered:

• “Kite”, which deals with the aftermath of the Kite case handled by my law partner at Boxer & Gerson, Michael Gerson. The issue in Kite and its progeny is whether impairments must be combined under the CVC chart, or whether and when that can be rebutted and the impairments added;

• “Benson”, which deals with the aftermath of the Benson case. The issue is whether and when an apportionment determination must allocate to separate injuries, and what happens when the disability is caused by “inextricably intertwined” injuries;

• QME panel/QME process problems and strategies to rebut QMEs

• The recent Dynamex case (with its ABC test for employment in a wage and hour context) and the multi-factorial Borello employment test that has been used in workers’ comp for years. Speakers noted that there have been dueling bills introduced in the California legislature that would either expand or extinguish the application of the Dynamex ABC test;

• The likely items that will be the focus of the DWC in 2019. This was presented by current AD George Parisotto and by Chief Judge Paige Levy. Doctor access to the ACOEM guides, a revised system for compensating QMEs, revised UR regulations, DWC access to UR data, further focus on enforcing anti-fraud measures, revision of the RFA form format, walk-thru procedures, district office security concerns, a backup court recording system and developing an EAMS replacement or upgrade were noted as some of the items that are currently being reviewed or may be considered;

• A discussion presented by many of the current WCAB Commissioners (Zalewski, Lowe, Sweeney, Snellings and Deputy  Anne Schmitz). This included discussion of reasons for delays at the WCAB (where reconsideration granted for study can lead to lengthy waiting) and analysis of cases involving panel QME disputes;

• Discussion of “The Most Important Cases”, a perennial convention must-see; these cases included a number of cases where CAAA was on the losing end, including Fitzpatrick, Lindh,  and King V. Comp Partners;

• A round-table on the current system, the impact of the 2018 election and a new administration featuring CHSWC commissioners Martin Brady (employer-side member) and Doug Bloch (labor-side member) as well as Assembly consultant Mark Rakich, a key figure in legislative matters.

• Medicare set asides and the complexities of how they are shaped by carriers and vendors, and what applicant attorneys should do to protect their clients and themselves;

• The concepts of “direct cause” and “cause”, the difference between medical and vocational apportionment, apportionment to lack of education and language skills, and the ramifications of these issues in cases where permanent total disability is alleged;

• Current ethical issues that arise in handling cases;

• Understanding how burdens of proof affect apportionment and other comp issues

Whatever your stakeholder perspective, the sessions were a worthwhile exploration of issues that will be critical to the California system in the coming months and years.

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

    CAAA SAN DIEGO published first on http://lawpallp.blogspot.com

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2019 CALIFORNIA WORKERS’ COMP QUIZ

What does 2019 hold for California workers’ comp?

2018 is kaput, but you can check out my recap of important 2018 developments here:

http://www.workerscompzone.com/2019/01/01/the-top-10-2018-california-workers-comp-developments/

Early each year I do a quiz on the likely developments in workers’ comp for the coming year. 

Just how prescient are you? Put on your thinking cap and let’s get started with the 2019 quiz (note there may be more than one correct answer):

1.The impact on workers’ comp claimants from the current federal government shutdown and any resolution of the border wall controversy will be:

a) No effect from the shutdown;

b) MSA processing will be severely backlogged;

c) Small scale tangential impact from claims due to reduced food safety, aircraft safety and other federal agency functions causing a handful of injuries;

d) Potential impacts depending on whether a broader comprehensive immigration bill is part of the shutdown resolution;

2. In 2019:

a) Governor Newsom will signal he has little interest in workers’ comp issues unless circumstances dictate it;

b) Newsom will make it clear he intends to continue the legacy of the Jerry Brown 2012 reforms and the employer/labor alliance that forged the reforms;

c) Newsom will look favorably on applicant attempts to loosen some of the SB 863 provisions and regulations;

d) Newsom will cede workers’ comp policy to his appointees and intervene only to broker deals between stakeholders;

3. In 2019:

a) The volume of IMR  requests will continue at a high level, and though stakeholders will bemoan that, nothing will be done to address the problem;

b) IMR requests will fall significantly as doctors are given online access to ACOEM;

c) Data mining reveals more detail about a subset of doctors who drive high volume IMR requests, with increasing calls for measures to address that problem;

d) Labor members on CHSWC and some legislators begin to agitate for changes to the UR and IMR system

4. In 2019:

a) Legislation is passed and signed that replaces the Borello employment test with the Dynamex employment test in California workers’ comp;

b) Legislation is passed and signed which overrules Dynamex and prohibits its use in all employment cases, including workers’ comp and wage and hour cases;

c) In exchange for agreeing to the abrogation of Dynamex, labor advocates get other things in trade-offs, but those do not include workers’ comp concessions;

d) The legislature does not pass any Dynamex related bills in 2019;

e) Several WCAB panels determine that the Dynamex employment test does not apply to the issue of employment for workers’ comp purposes;

5. The festering issue of what if any changes should be made to the way QMEs are paid for doing medical-legal reports will in 2019:

a) Be resolved by adoption of new regulations that largely bases payment for exams and reports on a flat fee schedule basis with some specific add-ons

b) Not be resolved in 2019, as key stakeholders remain unable to agree on a workable alternative to the current system;

c) Complexity will be removed as a payment factor and other specific criteria inserted as a payment multiplier;

d) California will look to the system used in Nevada and other states as it designs a new payment schedule;

e) Be part of a larger discussion about the declining numbers of QMEs, QME availability, the quality of reports and other issues;

6. In 2019:

a) Universal healthcare/healthcare for all is a big and divisive issue in the legislature, but there is no discussion of how workers’ comp would fit in such a system;

b) Newly elected Insurance Commissioner Ricardo Lara pushes for workers’ comp to be included in a universal healthcare system;

c) Despite all the talk, universal healthcare makes no progress in the legislature, and it is a non-issue for workers’ comp;

d) The Affordable care Act is declared unconstitutional, throwing the ACA into crisis and causing injured workers with no coverage to lose coverage;

e) the ACA continues to be stable in California, and many injured workers continue their coverage;

7. Regarding payments from the $12o million Return to Work fund:

a) No changes are made to the administration of the fund;

b) The DIR/DWC proposes that payments from the fund be automatically provided to workers who receive a retraining voucher

c) A bill is proposed to require the DIR/DWC to actually distribute $120 million each year, and the bill is signed;

d) Same as c), but the bill is killed;

e) Usage of the RTWSP increases to the point that concerns about administration of the fund begin to dissipate;

8. Regarding the prescription drug formulary that was instituted in 2018, by the end of 2019 it becomes clear that:

a) Pharmacy disputes are still a big portion of UR and IMR disputes, and the formulary has failed to change physician behavior:

b) UR and IMR friction over pharmacy issues has been drastically reduced due to the formulary;

c) Opioid use continues to fall in the comp system;

d) Pharmacy costs and disputes are down, but more modestly than anticipated;

9. Regarding cumulative trauma claims, in 2019:

a) A major employer effort to place limitations on cumulative claims and post-termination claims never materializes;

b) An effort to place limits on c/t claims fails as a more progressive Democratic supermajority never warms to the idea;

c) Why c/t claims are more common in parts of Southern California remains an issue under the microscope of regulators and policymakers, but the can gets kicked down the road;

d) Limits on c/t claims are traded for an increase in PD benefits;

e) Building trade unions, service worker unions and public safety officer/first responder unions block any attack on cumulative

10. After years of decreasing recommended workers’ comp rates approved by former Insurance Commissioner Dave Jones, in 2019 new Insurance Commissioner Ricardo Lara:

a) Approves one or more further recommended rate reductions in 2019;

b) Takes a stance aggressively questioning the insurance industry on the high level of ALAE and ULAE to benefits paid out;

c) Faces WCIRB requests for increasing pure premium rates and must deal with the fallout as workers comp costs begin to rise after years of cuts for most employers;

d) Shows little interest in workers’ comp as his focus remains on other types of insurance;

11. Bonus: The following will occur (more than one choice):

a) Intensified focus on fraud and abuse in the retraining voucher program;

b) Focus on workers’ comp entitlement of workers who suffer health problems from breathing smoky air from distant wildfires;

c) A report on workers’ comp from the State Auditor;

d) A revision of the California PD rating schedule;

e) Governor Newsom announces support for 24-hour care that would include workers’ comp;

f) National events result in a recession, and workers’ comp claim frequency increases as workers file claims;

g) Mass casualty events create problems for California self-insureds;

h) The DWC will have a quiet year focusing on improving execution of regs adopted during the Brown years;

i) Stakeholders will try to push the policy envelope to see what they can achieve under a new administration;

j) Administrative and overhead costs will eat up an increasing share of the comp pie to the point that policymakers will demand further reforms;

k) Geographic pricing differences for treating physicians will cause some physician shortages;

l) Increased focus on attorney involvement in capping schemes;

m) SCIF market share will continue to decline;

n) CAAA will have a legislative success after years in the wilderness under Governor Brown;

o) CAAA will continue to see its bills vetoed;

p) The more things change, the more they remain the same;

q) There is this thing called workers’ comp but the truth is that the public and policymakers don’t really care about it;

l) A golden era of stakeholder cooperation begins;

m) Get out your knives

You can grade yourself, or you can send me your answers.

Here is a link to last year’s quiz:

http://www.workerscompzone.com/2018/01/17/the-2018-california-workers-comp-quiz/

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

        2019 CALIFORNIA WORKERS’ COMP QUIZ published first on http://lawpallp.blogspot.com

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Century of Progress Still Leaves Injured Boston Workers Fighting for Rights

Media outlets are marking the 100th anniversary of Boston’s deadly molasses flood, which tore through the city’s North End, killing 21 and injuring another 150.

The Washington Post reports the rivets on a 50-foot-high storage tank began punching through the crisp January afternoon in staccato bursts. I dull roar followed as 2.3 million gallons of molasses engulfed the Boston waterfront in a tidal wave 25-feet high and 160-feet wide. Traveling at 35 miles an hour, the wave tore through the North End, crumbling small structures and knocking the firehouse off its foundation. Several city workers drowned while eating lunch outside, and a pair of 10-year-old boys were swept away in the flood.

Investigation in the aftermath revealed area residents had noticed the tank had started to leak through the summer months. Instead of repairing the tank, the company promptly painted it rust brown, making the leaking molasses virtually invisible. While the incident has reached legendary status primarily because of the sticky mess it left behind, Massachusetts injury lawyers know it was also a key incident that put the nation’s focus on corporate America’s obligation to the safety of workers and surrounding communities.

Resulting lawsuits against the company, U.S. Industrial Alcohol, lasted six years and grew to be among the most exhaustively litigated events in state history. Trial testimony theories of causation included structural tank failure, eruption caused by fermenting molasses, and sabotage. The company blamed sabotage, however a court-appointed auditor blamed the company, which later paid victims the equivalent of $9.2 million in today’s dollars.

A 2015 review by civil engineers published in the Boston Globe revealed the tank walls were too thin; the tank was under designed from the start.

By then, Massachusetts was no stranger to the dangers of companies putting profits ahead of safety. The 1905 Grover Shoe Factory explosion in Brockton had occurred the decade before, killing 58 and injuring more than 150 after a boiler explosion caused the fours-story wooden factory to collapse in flames, incinerating the workers trapped in the wreckage.

The incident was among those that prompted the birth of workplace safety standards a century ago. Another was the March 1911 Triangle Shirtwaist Factory. The deadliest industrial disaster in U.S. history killed 146 garment workers after a fire broke out in a Manhattan high-rise. Stairwells and fire exits had been blocked to prevent workers from taking unauthorized breaks.

The push for modern workplace safety regulations can be traced to the 1904 publication of The Jungle. The novel by Upton Sinclair revealed the harsh, exploitive, unsanitary conditions of Chicago’s meat-packing industry.

Work Injury Rights in Massachusetts

Today’s workforce benefits from the proceeding century of work-safety regulations. But our work injury lawyers in Massachusetts know those rights remain under attack.

The workers’ compensation system in Boston, which is codified in Section 152 of the Massachusetts General Laws (M.G.L.) is designed to be an exclusive remedy, meaning an injured worker typically forfeits the right to sue an employer for wrongdoing in the wake of a serious or fatal injury on the job. The intent is to provide injured employees with timely benefits, while protecting employers from the ruinous cost of injury liability.

However, one sure thing about the free-enterprise system is corporate America can always be expected to look out for its own best interests, often at the expense of employees or even neighboring communities. While injured workers are entitled to no-fault benefits under the law — including lost wages, medical expenses, rehabilitation expenses, partial and total disability benefits, disfigurement or loss of function compensation, and death benefits — many workers face long delays and challenges to the benefits to which they are rightfully entitled.

In other cases, employers misclassify workers’ as independent contractors to avoid the cost of providing workers’ compensation benefits. In some cases, company’s simply do not carry the required insurance, despite the law, and typically suffer few if any repercussions.

The economic benefits for companies are substantial. As the Boston Business Journal reported last  summer, workers’ compensation rates in Massachusetts have declined for the fourth year in a row. The cost of insurance has declined from 5.8 percent of payroll three years ago to 3.83 percent for 2019. Businesses are paying lower rates because the cost of claims has declined in comparison to the overall cost of payroll. That happens either because of systemic improvements in workplace safety across the Commonwealth, or reduction in cost by focusing on reducing, delaying or denying benefits to injured workers. We’ll leave it to you to decide which is the case.

Corporate Liability for Personal Injury and Third-Party Claims

Injury liability claims against corporations can be filed on a number of legal grounds. As discussed, employees are typically best served by filing a claim for workers’ compensation benefits with the help of a qualified Boston injury law firm. Not only can your experienced Massachusetts workers’ compensation lawyer work to secure all of the benefits to which you are entitled, your chosen law firm can work to determine other viable means of recovery.

Securing representation from an experienced law firm will also reduce the chances your claim will be delayed or denied, and allow your attorney to seamlessly pursue disability benefits, should your injury last longer or be more serious than first anticipated.

In cases where your employer does not have workers’ compensation insurance, or when another defendant (such as a property owner, subcontractor or equipment manufacturer) shares blame for your injury, a third-party liability claim may be pursued for additional compensation. In some cases, a portion of such awards may be required to go toward reimbursing a workers’ compensation insurer for benefits already paid, but your work accident attorney will be in the best position to protect your rights at each stage of the process.

Massachusetts companies have suffered several high-profile events that have impacted surrounding neighborhoods in recent years, including last year’s deadly gas explosions in Lawrence. In such cases, personal injury or property damage liability lawsuits may be filed under the general laws of tort negligence in Massachusetts. In other cases, premises liability laws may apply when a guest falls or is otherwise injured by dangerous conditions on business property.

If you or someone you love has been injured a Boston work accident, call for a free and confidential appointment at 1-888-367-2900.

                  The post Century of Progress Still Leaves Injured Boston Workers Fighting for Rights appeared first on Massachusetts Workers Compensation Lawyers Blog.

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THE TOP 10 2018 CALIFORNIA WORKERS’ COMP DEVELOPMENTS

As the year comes to a close, it’s time to assess what was significant in California’s workers’ compensation system in 2018. With hindsight, what were the big developments and the big themes?

Each year I assess system developments at mid year and at year’s end. Here, in no particular order, are my picks for 2018 (with links to blog posts discussing  these developments in detail):

1. California instituted a prescription drug formulary

This is a major change and follows adoption of formularies in many states. It took a lengthy period of drafting and multiple comment rounds, but the DWC finally adopted formulary regulations that went into effect at the beginning of 2018. Those formulary regs follow the late 2017 DWC adoption of revised MTUS treatment guidelines, largely based on ACOEM treatment protocols. The formulary regulations exempt some medications from review but others are non-exempt. Disputes over pharmaceuticals have been a major component of UR and IMR volume.

In July 2018 the California Workers’ Compensation Institute released an analysis showing results from the first 5 months of 2018. The formulary appeared to have had some effect on pharmacy disputes, as CWCI claimed that “The findings show that the proportion of UR decisions involving prescription drug requests fell from 44.5 percent in the pre-formulary period to 40.7 percent in the first five months of 2018, a relative decline of 8.5 percent.”

2. Possible reform of the way QMEs are paid for medical-legal reports generated increasing controversy

The past several years have seen turmoil in the QME system, as the number of QMEs have declined and as the DWC Medical Unit took a hard line on renewing the status of some QMEs.

In May 2018 the DWC held a public forum on proposed changes to QME billing. As a result, there was a huge reponse by the QME community, many of whom predicted that they would either stop doing QMEs or, if they stayed in the system, would not be able to do quality work.

By year’s end the DWC has not moved forward with any proposed regulations. Several QME groups and physician professional organizations have submitted proposals for changes in the QME billing system, and the DWC appears for the moment to be taking a more collaborative approach, gathering ideas before moving forward in the regulatory process.

Meanwhile, RAND’s long anticipated QME study was posted. My comments on that study are here:

http://www.workerscompzone.com/2018/12/05/rand-posts-medical-legal-study-draft-report/

3. Workers’ compensation insurance rates continued a declining pattern for most employers

Workers’ comp does not appear as a hot-button issue these days in articles on California’s business climate. Although what rates employers actually pay depends on many factors, the advisory workers’ compensation rate approved by the California Insurance Commissioner continued to decline. In November 2018 outgoing Insurance Commissioner Dave Jones approved the eighth advisory rate decrease since 2015, ordering a non-binding advisory rate of $1.63 per $100 of payroll.

The text of the DOI finding is here:

http://www.insurance.ca.gov/0400-news/0100-press-releases/2018/upload/nr130PROPOSEDDECISIONANDORDERWC.pdf

Average rates actually charged California employers were down about 10% in 2018 from 2017 levels.

4. The cost of administering the system remained extremely high in relation to benefits provided

According to the 2018 WCIRB State of the System report, in 2018 (as in 2017) it costs $.53 to deliver $1 of benefits, an absolutely stunning ratio. Too little is going to workers after brokers, ALAE (allocated risk expenses), ULAE (insurer overhead costs) and other segments take their cut.

Frictional costs, loss adjustment expense and cost containment expenses continued to be extremely high. Frictional costs now exceed the cost of paid indemnity benefits (TD and PD payments). According to the 2018 SOS report, total overhead expenses now comprise 42% of insurer costs vs. 58% for indemnity and medical. The CHSWC draft annual report for 2018 has the figure even higher, with expenses reaching 44.3% of system costs in 2017.

Here is my detailed commentary on those high expenses:

http://www.workerscompzone.com/2018/07/11/the-wcirb-reports/

While many employers may be celebrating lower workers’ comp costs, the poor ratio of costs to benefits paid is increasingly worrisome.

And as I note in a December 2018 blog post

“The WCIRB 2018 State of the System report provides a visual summary of the SB 863 results based on comparison of original 2012 projections with 2016 WCIRB figures. As of 2016, overall savings were $1.3 billion, not the estimated $200 million.

That’s a big imbalance, one that leads many worker advocates to believe that workers should share some of the savings by further benefit increases or lightening a bit on some of the system’s roadblocks.”

http://www.workerscompzone.com/2018/12/04/actuaries-at-it/

5. There were few significant bills signed by Governor Brown during his last year

In late September Governor Brown vetoed five comp-related bills while signing four others. A full description of those bills can be found in my September 24 post you can find here:

http://www.workerscompzone.com/2018/09/24/brown-signs-and-vetoes-bills/

Looking back on the past several years, Brown vetoed any bills that the employer community felt might endanger the 2004 and 2012 reform bills. As in the past several years, bills supported by the applicant bar got no traction.

However, a rumored push to change the rules on cumulative trauma claims in California never materialized.

One sleeper issue arising out of this year’s legislative session may be the possible impact of the California Consumer Privacy Act of 2018 (CCPA), effective 1/1/2020, on California workers’ comp. Some insurers, employers and defense firms are concerned as to how this law may expose them to liability for data breaches and problems with information security. It is quite likely that 2019 will see legislative efforts to amend CCPA.

6. California courts issued several 2018 decisions that could have a significant impact on the system, and the applicant bar was on the losing end of many of the significant appellate cases

Key cases include the following:

• Dynamex Operations West v. Superior Court (California Supreme Court); this case, while not arising in a workers’ comp context, could have significant implications for the definition of who is an employee and who is an independent contractor. In a dispute over wage and hour rules the court adopted a more broad criteria for finding a worker to be an employee. Employers, particularly “gig economy” companies, called foul and have begun to mount an effort to overturn or limit the application of Dynamex.

Here are thoughts on what may follow Dynamex:

http://www.workerscompzone.com/2018/11/09/after-dynamex-what/

• King v. CompPartners (California Supreme Court) (the court, finding that workers’ comp preempted a civil remedy, rejected a tort remedy sought by a worker who alleged that a UR reviewer has a duty of care to the worker , who was not warned by the reviewer of the danger of withdrawing from a non-certified medication). Here is my post on the case:

http://www.workerscompzone.com/2018/08/24/the-california-supreme-court-speaks/

• County of San Diego v. WCAB (Pike) (Court of Appeal) (rejecting an award of TD after 5 years from the date of injury even though a petition to reopen was filed before the 5 year anniversary of injury). Commentary on Pike can be found here:

http://www.workerscompzone.com/2018/03/09/no-wiggle-room/

• Zuniga v. WCAB (Court of Appeal) (rejecting another challenge to the constitutionality of the IMR system)

• SCIF v. WCAB (Guzman) (Court of Appeal) (holding that where worker’s soil compactor hit a rock and fell on him, there was not a “sudden and extraordinary” event that would trigger an exception to the 6-month employment requirement for psyche claims). My commentary on the Guzman case is here:

http://www.workerscompzone.com/2018/02/06/those-magic-words/

• Department of Corrections and Rehabilitation v. WCAB (Fitzpatrick) (Court of Appeal) (in this decision which has implications for cases where workers seek a fining of permanent total disability, the court held that for pre-1/1/2013 cases Labor Code 4660 governs how a finding of permanent total disability call be made under Labor Code 4662(b) “in accordance with the fact”). Further thoughts on Fitzpatrick can be found here:

http://www.workerscompzone.com/2018/10/11/fitzpatrick-and-4662b/

• City of Petaluma v. WCAB (Lindh) (Court of Appeal) (in this decision the court overturned a WCAB panel decision that had rejected a QME’s apportionment determination, finding on the facts in the case that there could be apportionment to an asymptomatic pre-existing condition). My post on Lindh is here:

http://www.workerscompzone.com/2018/12/11/the-lindh-apportionment-decision/

• City of South San Francisco v. WCAB (Court of Appeal) (clarifying employer liability under California cumulative trauma statutes in a case involving industrial cancer presumptions for firefighters)

• Suon v. California Dairies (WCAB en banc) (dealing with disputed request for replacement QME panel where there were issues regarding “information” and “communication” to the QME); reflections on this case can be found in my post:

http://www.workerscompzone.com/2018/10/25/loosey-goosey/

7. The focus on combating workers’ comp provider fraud continued

While employer premium fraud and labor law violations in the underground economy remain a major problem, alleged fraud by medical providers continued to generate much publicity. Names of accused or convicted workers’ comp profiteers such Drobot, Solakyan, Garbino, Uwaydah, Barri, Sobol, Iglesias and Howser continued to pop up in indictments and lien consolidations.

The anti-fraud statutes AB 1244 and SB 1160 continued to have effects. In June 2018 the DWC announced that 263 medical providers had been suspended from the system.

A March 2018 DWC report had noted that as of that time 465,000 liens filed by or on behalf of criminally charged providers had been stayed. And hundreds of thousands of liens had been dismissed by operation of law due to failure to file lien declarations required by Labor Code 4903.05. Those liens had a claimed value in the billions. The DWC report can be found here:

https://www.dir.ca.gov/Fraud_Prevention/Reports/Anti-Fraud-Report2018.pdf

Still, even with all this, there was concern that profiteering on the backs of injured workers remained endemic in the California system.

8. In the last year of Brown’s term there were major personnel changes at DIR/DWC and at the WCAB

In a sudden move that shocked many, Christine Baker resigned her post as Director of the California Department of Industrial Relations. The exact circumstances of her departure were surrounded by rumor but shrouded from the comp community. Baker was replaced by a caretaker at DIR, Andre Schoorl, with Schoorl reporting to David Lanier. Baker’s departure marked the end of an era, as she had left an indelible mark on California workers comp in the last 20 years in her successive roles at CHSWC, the DWC and the DIR, including extensive activity putting together a coalition for the 2012 reforms and shepherding the multi-year effort to craft regulations required by SB 863. Whether loved , feared or hated by stakeholders, her vision for the system remains in place at the end of 2018.

Meanwhile, George Parisotto was confirmed as AD of the DWC. Parisotto’s vision for 2019 was covered in my recent post, “Setting the Agenda”:

http://www.workerscompzone.com/2018/12/18/setting-the-agenda/

2018 was also notable for changes at the WCAB. Longtime commissioner Frank Brass quietly retired in January 2018. I commented on Brass’ tenure here:

http://www.workerscompzone.com/2018/03/22/frank-brass-retires/

In the summer of 2018 Governor Brown made a somewhat controversial pick, choosing a non-lawyer, an old high school chum for one of the slots. That friend of Brown, Juan Pedro Gaffney, had ties to other senior Democratic politicians as well, and won confirmation despite no experience in the workers’ comp field.

Shortly thereafter Brown appointed a 29 year old politically connected lawyer, Katherine Williams Dodd, to another of the vacant WCAB slots.

At the end of 2018 it was announced that Angie Wei of the California Labor Federation will be joining the incoming Newsom administration in a major policy adviser post. Ms. Wei, a CHSWC Commissioner, was a major force  in forging a coalition between labor and employers culminating in the 2012 reforms.

Newsom himself has issued almost no public statements on workers’ comp during the 2018 campaign, and it seems unlikely that workers’ comp will be a major priority of his administration as long as comp costs remain static.

9. IMR volume continued at a high volume, and at year end CHSWC commissioners expressed concern

Anecdotally, workers and applicant attorneys continued to complain of problems with treatment denials.

A September 2018 California Workers’ Compensation Institute study looking at data through mid 2018 found that IMR volume had actually increased in 2018, though IMR outcomes remained basically the same, with IMR reviewers upholding the UR reviewer treatment non-certification more than 90% of the time. The report noted that “a small number of physicians continue to account for most of the disputed medical services that go through IMR.”

https://www.cwci.org/press_release.html?id=662

The September 2018 DIR report analyzing 2017 IMR data can be found here:

https://www.dir.ca.gov/dwc/imr/reports/2018_IMR_Annual_Report.pdf

At year’s end, several CHSWC commissioners expressed concern about the continuing high volume of IMR disputes, noting that that was not what was intended in the 2012 reforms, and posing queries as to why the frequency of disputes remains so high and what can be done about it.

10. As always, there were a raft of studies on how aspects of the system are preforming

Today’s studies can sometimes become the basis for tomorrow’s policy changes. Here are some of the studies I tracked in 2018, with links to commentary:

The WCIRB published its annual State of the System report, a cornucopia of data on workers’ comp trends in California:

https://www.wcirb.com/sites/default/files/documents/2018_state_of_the_system_report_0.pdf

My comments on the WCIRB report are here:

http://www.workerscompzone.com/2018/07/11/the-wcirb-reports/

At year end CHSWC posted a draft form of its 2018 Annual Report:

https://www.dir.ca.gov/chswc/Reports/2018/CHSWC_AnnualReport2018.pdf

In September 2018 RAND presented preliminary findings on worker access to medical treatment. My comments on that presentation are found here:

http://www.workerscompzone.com/2018/09/28/treatment-access-study/

A CWCI study unveiled in March 2018 claimed that in the past 10 years opioid prescriptions in the California system “fell from about a third of indemnity claim prescriptions to less than a quarter”.

https://www.cwci.org/press_release.html?id=636

My post on the CWCI opioid study is found here:

http://www.workerscompzone.com/2018/03/29/the-opioid-study/

In August 2018 CWCI announced research on so-called polypharmacy claims; among the findings are that opioids remain very common among claims where workers are on multiple concurrent medications:

https://www.cwci.org/press_release.html?id=659

Now that Democrats have a super-majority in Sacramento, progressive Democrats are likely to continue pushing the concept of universal health coverage, “Medicare for al”, or “single payer”. Bills to advance such a plan died in the legislature during the last several sessions. In March 2018, CWCI studied issues that would arise in integrating 24-hour coverage and California workers’ comp:

https://www.cwci.org/document.php?file=3813.pdf

In October the WCIRB produced a webinar on cumulative trauma claims:

https://vimeo.com/295926993/cc52fc4315

RAND presented a report on the $120 million Return to Work Fund:

http://www.workerscompzone.com/2018/04/09/rands-report-on-the-return-to-work-fund/

Stay tuned. I’ll soon be posting a 2019 workers’ comp quiz where readers can test their skill at predicting the future.

My 2017 Top Ten list can be seen here:

http://www.workerscompzone.com/2017/12/29/2017-california-workers-comp-top-10-list/

My mid-year 2018  Top 10 list covered several other issues:

http://www.workerscompzone.com/2018/07/18/top-10-developments-in-california-workers-comp-1st-half-2018/

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

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Cold Weather Work Injury Risks in Massachusetts

Hopefully you are enjoying a warm holiday season with friends and family.

But as the New England weather turns frigid, many workers and employers must take steps to prevent injuries through Massachusetts’ long winter season.

When we thing of work-related injuries associated with winter weather, we often think of utility crews, snow-plow and road crews, law enforcement and other employees who must brave outside temperatures as part of their daily routine. Certainly, these workers are at heightened risk. But many others face increased injury risks, from those working in cold factories and warehouses to retail workers task with snow removal and other outdoor activities. In fact, such employees are often unprepared for winter-weather tasks, which can put them at even greater risks than those used to working in extreme temperatures (both hot and cold) as part of their work routine.

Workers’ compensation lawyers in Boston know the risks are substantial but not unpreventable. Both employees and employers must do their part to stay safe on the job as temperatures plummet across New England.

Massachusetts Weather-Related Work-Injury Claims

An experienced Boston workers’ compensation lawyer will be best able to determine liability and protect your rights. Under M.G.L. c. 152, the Massachusetts Workers’ Compensation Act, most employees injured on the job are entitled to coverage of medical and rehabilitative expenses, as well as a portion of lost wages. This is a no-fault system that provides benefits to covered workers who are injured during the scope and course of employment. This means it’s not necessary to prove negligence or fault on the part of an employer, and in most cases an employee will be covered even if he or she was partially at fault for a work injury. However, coverage under Massachusetts workers’ compensation laws generally means a worker cannot sue an employer for additional damages, even if a company was negligent, as in cases where proper safety equipment was not provided or when steps are not taken to protect employees from the known dangers of harsh winter weather conditions.

But that does not mean workers’ compensation benefits are an employee’s only source of recovery. In cases where an at-fault party (other than an employer or co-worker) shares blame for injury (such as a property owner, equipment manufacturer or at-fault driver) a third-party liability lawsuit may recover additional damages not available under workers’ compensation laws. Consulting an experienced Massachusetts personal injury law firm can help identify all responsible parties while ensuring an employee collects all workers’s compensation benefits to which he is entitled. Timely reporting of a work injury is required, but employees who seek experienced legal help will often be in the best position to protect their rights in the wake of a work injury.

Hypothermia and Winter Work Injury Risks in New England

As one of the coldest areas in the nation, employees face greater risks in Massachusetts than in much of the rest of the country.

Hypothermia is a primary threat, both for outdoor workers and for those working in large facilities without adequate heat and insulation. In some cases, these employees may be at even greater risk because of inadequate safeguards and a lack of understanding about the signs and symptoms of hypothermia and other weather-related medical conditions.

Hypothermia occurs when the body’s normal temperature (98.6 degrees) falls below 95 degrees. While harsh outdoor weather can quickly increase the risks, inhospitable indoor temperatures can slowly take their toll, taking both employees and employers by surprise. Hypothermia is a life-threatening medical condition that can result in heart failure and respiratory suppression, eventually resulting in death if left untreated. Frostbite and gangrene may also result, typically starting with fingers and toes.

The Mayo Clinic reports common symptoms include:

Shivering

Slurred speech or mumbling

Slow, shallow breathing

Weak pulse

Clumsiness or lack of coordination

Drowsiness or very low energy

Confusion or memory loss

Loss of consciousness

Bright red, cold skin (in infants)

Risks to employees can occur whether working issued or outside. Primary risk factors include inadequate clothing, being cold for too long, getting wet, or living or working somewhere with inadequate heat or insulation. The body loses heat in a number of ways:

Radiated heat: Is lost from areas of the body not properly insulated, especially the head and feet.

Direct contact: Body contact with cold surfaces significantly increases heat loss. Wet surfaces conduct heat away from the body much quicker than cold air.

Wind: Those working outdoors should pay particular attention to the wind chill factor. Wind quickly removes warmer air at the surface of the skin, which can quickly result in loss of core body temperature.

Risk factors include fatigue, age (the elderly and young are more impacted), alcohol and drug use, and certain medications and medical conditions. Prevention includes covering the head, face and hands, dressing in layers, staying as dry as possible, and avoiding overexertion. In many cases, employers must take steps to provide extra break time for employees, or make other efforts to rotate workers out of cold weather at frequent intervals.

Winter weather creates a host of other injury risks for employees, including falls and injuries resulting from snow-removal. Massachusetts Interlocal Insurance Association offers a number of snow-shoveling safety tips:

Wear warm, layered clothing.

Use a shovel with a handle long enough to keep your back straight.

Take it slow and take frequent breaks.

Step in the direction you are throwing snow, which provides better leverage and reduces risk of back injury.

Listen to your body.

Like any injury accident, careful documentation of conditions can be critical when it comes to recovering compensation. However, documenting conditions can be even more critical when weather-related injuries occur on the job. Dangerous conditions are often quickly corrected in the wake of an accident, and ice, snow, standing water or other weather dangers are transient in nature and are best documented in the immediate aftermath of an accident. Consulting a Massachusetts injury law firm can best allow you to protect your rights and recover the compensation you deserve.

If you or someone you love has been injured a Boston work accident, call for a free and confidential appointment at 1-888-367-2900.

      The post Cold Weather Work Injury Risks in Massachusetts appeared first on Massachusetts Workers Compensation Lawyers Blog.

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