Users of certain types of scissor lifts are being advised to make daily safety checks after five people were killed in three separate incidents when they overturned.
A safety alert has been issued by Britains Health and Safety Executive (HSE) to warn service and maintenance engineers and those in the construction industry who use, or lease out, JLG 500RTS and 400 RTS scissor lifts, to ensure that safety critical components are working correctly. (WCxKit)
In all three fatal overturn incidents in Europe over the past four years:
1. The oscillating axle which allows the machine to be driven on uneven ground with the platform in the transport position failed to lock when the platform was raised.
2. The lift/drive interlock system did not work allowing the platform to be elevated above 6.7m without the stabilizers being deployed.
Owners of both these types of scissor lifts are being advised to ensure that the oscillating axle lockout system and the lift/drive cut out switches are checked for correct functioning (in accordance with the manufacturers recommendations) before the machine is next used and that users complete daily inspections and function testing of both elements.
According to HSE Inspector Richard Clarke, "Though this safety alert is primarily to warn those who own and use these specific models of scissor lift, and those with similar interlock systems, it should serve as a reminder to all users of mobile elevating work platforms that there is a need to regularly maintain, inspect and test the equipment. This isn't just recommended by manufacturers but is also required by law. (WCxKit)
"Used as directed and with all the necessary checks, we continue to recommend the appropriate use of mobile elevating work platforms as a tool to enable work at height to be carried out safely."
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
Plaintiff workers compensation attorneys will tell the general public their purpose is to assist the injured employee. However, plaintiff attorneys are in business to make a profit. If there is no money in it for the plaintiff attorney, their willingness to assist the injured employee vanishes. In order to earn service fees there must be some conflict between employer and employee. If the employee does not have any issues with the employer, the employee is highly unlikely to hire an attorney (assuming the employee is not bringing the workers compensation claim for the purpose of self enrichment).
Plaintiff attorneys know that without issues between the employee and the employer, or between the employee and the employer's insurance adjuster, they make no fees. Therefore, it is incumbent on the plaintiff attorney to encourage conflict between the employer and the employee. Attorneys also understand employees may have feelings of loyality. To overcome the reluctance of many employees to have conflict with their employer, the plaintiff attorney's approach with the employee is to emphasize the conflict and perceived wrong the employer or the adjuster has done. By driving a wedge between the employee and the employer, the plaintiff attorney can earn the service fee from the employee.(WCxKit)
Eight things plaintiff attorneys have been known to tell employees in an effort to create issues and conflicts and to sign up the employee as a new client are as follows:
1. The insurance company has a team of lawyers on its side; you need someone to protect your interest. The reality is the workers compensation adjuster almost never hires an attorney for a workers compensation claim unless the employee has obtained an attorney. Even then, the work comp adjuster will not hire a defense attorney unless the plaintiff attorney files a motion for a hearing or trial.
2. Attorney’s tell clients they take a tremendous risk if they don't have an attorney “protecting their rights” or “by your side” or “on your claim” or “guiding you through the complicated process with skillful representation” or “you won't receive fair compensation without an attorney.” In truth, the workers compensation statutes of every state have clear cut guidance to the insurance companies on how they must handle claims. All states require all reasonable and necessary medical expenses to be paid. All states define exactly how temporary total disability indemnity benefits will be calculated and paid. All states define how permanent partial and total disability will be calculated and paid. All states define how death benefits and vocational rehabilitation will be handled.
3. Attorneys tell clients “we don't charge a service fee unless we collect benefits for you.” What is not said, is they will not accept the employee as a client if they do not think the employee has a valid workers compensation claim. The plaintiff attorneys also do not emphasize that the service fee comes out of the money the employee would collect anyway for temporary total disability or permanent partial disability or permanent total disability.
4. Attorneys say, “We believe that quality representation is a basic right and should be available to everyone, not just the wealthy.” When plaintiff attorneys take this approach, they are playing to the employee's feelings of being treated unequally by the “big, bad insurance company”. A skilled workers compensation adjuster who contacts the employee promptly, answers all the employee's questions completely and accurately, and makes sure the employee is obtaining all medical care needed, will prevent this plaintiff' attorney's approach to creating a feeling of conflict.
5. Plaintiff attorneys say that the workers compensation system is complicated, difficult to understand and can be overwhelming. Here, attorneys are able to play on the employee's fear of the unknown. Of course, for their service fee, they will guide the employee through the state workers compensation statutes. The sad part is often the employee does not need their guidance, as the state statutes mandate what the employer and/or the insurance company adjuster can and can not do on the work comp claim.
6. Attorneys say the insurance company will deny you the benefits you are entitled to if you have a big claim. The size of the claim has nothing to do with the payment of benefits. The insurance company must pay the benefits mandated by state work comp statutes. The only claims for denied benefits are those where the medical documentation does not justify what is being claimed, whether it is additional medical care or additional indemnity benefits.
7. They tell potential clients insurance company adjustersoperate illegally or act maliciously under the assumption that most employees pursuing workers compensation claims are malingerers or frauds.In real life, the large majority of workers compensation claims are routinely handled by the adjuster. The adjuster pays the temporary total disability benefits until the employee is back at work and pays the medical benefits until the employee no longer needs medical care. The only claims the adjuster ever considers the employee malingering is when the employee is taking longer to recover than normal and the medical information provided does not justify the delayed recovery. As for fraud, unfortunately there are some employees who will attempt to take advantage of the workers compensation system and when the adjuster sees a highly questionable claim, the adjuster should check its appropriateness.
8. They say that employers encourage the insurance company to deny your claim so they can keep their workers compensation insurance premium down. If the employer has information that a work comp claim is bogus or fraudulent, the employer should advise the adjuster so the appropriate investigation can be completed and a case built to justify the denial of compensability of the bogus or fraudulent claim. If an employer was to tell the adjuster to deny a valid claim, the underwriter of the insurance company would be notified and the employer would be facing cancellation. The employer would probably have higher insurance premiums from the next insurance company who picks up the employer for work comp insurance coverage.
There are some valid reasons an employee will obtain an attorney. If the employer or adjuster is non-responsive to the employee when the accident occurs, or during the course of the medical recovery, often the employee will get an attorney because they don't know what to do and have not received the guidance they need from either the employer or the adjuster. If the medical provider is unresponsive to the employee's concerns about their medical care, and the adjuster is also unresponsive to the employees concerns about their medical care, the employee will often obtain an attorney, and they should. (WCxKit) If the employer promotes a caring atmosphere and is responsive to injured employees, the employees will have no reason to hire an attorney. Once an employee hires and attorney, the cost to settle the claim will increas.
There are also the unsavory reasons an employee will obtain an attorney such as a desire to “milk the system,” to have an extended stay off work, and to “hit the work comp lotto.” There is little the employer or the adjuster can do to stop the employee who has a desire to “get something for nothing” by obtaining an attorney. However, as the large majority of employees are ethical and honest, their claims can be kept out of the hands of the plaintiff's attorneys by the proper handling of their claim by the employer and the adjuster.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
Don’t assume your insurer has your best interests in mind. Sometimes you need to remind them. And sometimes you need to be very specific about your needs.
1. Get Regular Reports
It is essential for companies to request brief, narrative reports from their insurers for all open claims at regular intervals of 30, 60 or 90 days. The frequency of reporting requirements is, of course, dependent on claims volume and availability of internal company staff.(WCxKit)
A company with 1,000 lost-time claims annually may want less frequent or less-detailed reports every 90 days, for example, but, a company with only 100 lost-time claims annually may want full narrative reports every 30 days.
The adjuster should provide sufficient detail in describing “action items” planned for each 30-day period that indicates steps to be taken to resolve the claim.
Many companies requested information solely about reserve practices in the past, however, the focus of reporting requirements should be on claims resolution strategies.
2. Ask About Recovery Potential – Get it in Writing
Additional items often incorporated in your Account Servicing Instructions (ASI) include requirements that “all claims should be evaluated for state second injury fund and subrogation potential.” The company should receive a report identifying recovery potential within 90 days after the claim is received by the carrier. The carrier files liens in all actions brought by its employees against third parties and these liens should not be waived or compromised without the company’s prior written consent.
3. Benefit Checks Should Come to You First
In those states where permissible, benefits checks should be delivered to the company to distribute to employees. In lieu of this, copies of all checks should be forwarded to the company. All claims should be paid “without prejudice” in those states where possible, and the carrier should file for extensions of this status whenever possible.
4. Ask Your Carrier to Reference the CIB
Companies should also request their carriers reference the Central Index Bureau, an insurance industry-maintained database, on all claims to determine if a prior claim was filed.
5. Be Sure your Carrier and Insurer Are On the Same Page with Denials
When the company requests a claim be discontinued, the carrier should be flexible enough to agree to take necessary steps to terminate benefits in a timely manner so long as the company’s position is legally supportable. The carrier should take an aggressive posture in denying insupportable claims. Conversely, the insured should be consulted before any claim is denied to avoid human resource and morale problems. (WCxKit)
6. Your Insurer Should Notify you In Advance Regarding Hearings
Furthermore, the company should be notified sufficiently in advance of all hearings and conciliations so its representative may attend the hearings. Also, the litigation manager should be consulted before appeals are filed and should retain the right to determine whether an appeal is warranted.
Are you getting the most from your insurer? Find out about six places companies forget to check #WorkersComp.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
A $60,000 payment to settle a harassment and discrimination lawsuit filed by a city employee has been approved by the Des Moines City (Iowa) Council.
According to theDes Moines Register, the payment goes to Stephanie Trujillo and her attorney, Karin Zeigler. The settlement was given the go-ahead without discussion at the council meeting. (WCxKit)
The lawsuit filed in Polk County District Court named the city of Des Moines, Human Resources Director Tom Turner and human resources manager Michael Carter as defendants.
In the suit, Trujillo stated a department head made inappropriate comments regarding her breasts, and that another supervisor joked regarding symptoms that were due to a brain lesion.
Zeigler filed paperwork in district court to have the claims against Turner and Carter dismissed with prejudice, which means Trujillo cannot invoke additional action on the same claims.
The settlement “is not an admission of wrongdoing or liability, merely a compromise of contested facts,” according to the resolution the City Council will vote on.
Trujillo was employed in the Human Resources department from 1997 until she was dismissed in June 2010, according to the lawsuit.
Trujillo started suffering from late-stage Lyme disease in March 2008, which led to a large brain lesion and severe cardiac and neurological problems, the lawsuit said. She also was diagnosed with pernicious anemia, a disease that can lead to fatigue, nausea and weakness.
The lawsuit sought damages to compensate Trujillo for emotional distress, punitive damages to deter likewise behavior in the future, attorney fees, interest, back pay and benefits. Trujillo also requested policy changes and employee training to prevent sexual and disability harassment. (WCxKit)
In December, Zeigler noted that Trujillo had recovered from the brain lesion and was being treated for her anemia. The harassment had ceased, she indicated at the time.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
The claims quality control auditor noticed something unusual on the first file of the workers compensation claims audit. The auditor quickly realized the error he noted on the first claim file had been made on the second file, third file…….every file in the audit. It was a very unusual error, too. Every claim file was grossly over reserved, not just within the margin of being overly cautious, but on average four to five times the amount of total reserves that would normally be needed.
The claims office was operated by one of the largest third party administrators (TPA) in the country with an odd exception. The exception was the claims manager who was an employee of the self-insured employer. Everyone in the claims office – approximately 40 employees, who were employees of the TPA, reported through the office chain of command to the claims manager. (WCxKit)
In the first file reviewed where the claims auditor first noticed the over reserving, the claimant had a crushed finger. As the state where the injury occurred had a chart for Scheduled Injuries for limbs, hearing and vision, the maximum the self-insured employer could pay on the claim per the Schedule of Injuries for the state was $10,220. The indemnity reserve? $50,000. A back injury with a 10% rating had a $500,000 reserve. An ankle sprain had a $200,000 reserve. What the heck was going on?
In interviews with the staff, the claims auditor learned the claims manager was providing the reserve amount he wanted on every indemnity claim. In a discussion with the claims manager, he stated he had been instructed by his boss back at the self-insured employer to make sure there were adequate reserves on every claim. It became apparent to the auditor that the claims manager, who was put in charge of the work comp claims office, had only basic knowledge of workers compensation. All of the work comp adjusters realized the reserving was way high, but were following the manager's instructions.
The auditor realized that the gross over-reserving was causing the self-insured employer to have way too much money set aside for the workers compensation claims. Instead of the approximate $25 million they needed in reserves for their indemnity claims, the company had over $110 million in indemnity reserves. The extra $85 million in reserves was a substantial amount of cash for the self-insured employer. So much in fact, that the self-insured employer was borrowing money to meet its other financial needs to operate their business.
The claims auditor took the unusual step of contacting the Chief Financial Officer (CFO) to see why the self-insured employer was grossly over reserving every claim file. It did not take long for the claims auditor to realize the CFO (and for that matter, the entire senior management of the self-insured employer) knew nothing about workers compensation or the operation of a claims office.
The CFO was ebullient in his praise of the workers compensation claims manager, stating “he does a fantastic job of managing the work comp claims, he gets almost every claim settled for 20 to 25% of what they would normally cost.” When the CFO was questioned about his knowledge of work comp, he admitted he had none. In further discussion, it came to light that the CFO was determining what they would normally cost by the amount of reserves set on each claim file!
The claims office manager who reported to the CFO was intentionally overstating the reserves on each work comp indemnity claim. His purpose? Simply to look good and impress his boss on what “ a fantastic job” he was doing in managing the claims office. In reality, the TPA's claim staff was doing an adequate job on the claims, but not a fantastic job by any means. On average, the work comp claims were settling for what they worth.
The claims file auditor, seeing that neither the claims manager nor the CFO had an understanding of how the gross over reserving was impacting the ability of the self-insured employer to manage their company's financial operations, realized something needed to be done. The auditor decided to assist them without embarrassing the claims manager for his intentional over reserving or embarrassing the CFO for his lack of understanding of what was happening.
The auditor invited the CFO to attend the audit wrap-up session with the claims manager. In the wrap-up discussion, the auditor noted on average, the claims were consistently settling for 20 to 25% of the reserve amount. The auditor asked the claims manager if there was any reason the office could not continue to settle the work comp claims as they had been doing. The claims manager acknowledged they should be able to continue to settle the work comp claims along the same lines as they had been doing. The auditor recommended that since the claims were almost always settled for less than 25% of the reserve amounts, that the reserves across the board be reduced by 75% each (which left all the files adequately reserved for their ultimate settlement value). (WCxKit)
The CFO was ecstatic to learn they could move $85 million from the work comp claim reserves into their operations cash. The claims manager smiled (an unhappy forced smile) knowing from that point forward he would have to impress his boss by actually accomplishing something rather than playing games with the claim reserves.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
The Whistler, British Columbia Company at the center of an animal cruelty investigation has voluntarily suspended operations days after a leaked WorkSafeBC document showed a worker who developed post-traumatic stress disorder (PTSD) was awarded compensation after killing upwards of 100 sled dogs last year.
According to Canadian OH&S News, on Feb. 1, Outdoor Adventures at Whistler Ltd (OAW) said it had suspended operations and ceased conducting tours at Howling Dog Tours Whistler Inc (HDTW), the company it assumed control of in May, 2010. The announcement follows a Jan. 25 WorkSafeBC review decision awarding the former general manager of HDTW compensation for euthanizing the dogs on April 21 and 23, 2010. (WCxKit)
The ruling overturns a previous WorkSafeBC decision that denied the claim on the basis that the workers PTSD did not "arise out of a sudden and unexpected traumatic event." WorkSafeBC spokeswoman Donna Freeman confirms that the organization did not release the document – which was leaked to the media – as compensation claims are protected by privacy laws.
In the decision, review officer Allan Wotherspoon says an incident in which the worker was attacked by a wounded dog was unexpected and traumatic.
"Notwithstanding the absence of physical injury to the worker, the circumstance where the worker found himself on his back, fighting off a wounded sled dog and eventually dispatching it with a knife, was emotionally shocking such as to constitute a sudden and traumatic event," Wotherspoon writes.
The British Columbia Society for the Prevention of Cruelty to Animals (SCPA), who has launched an animal cruelty investigation, says that the decision to euthanize the dogs followed a downturn in tour bookings following the Vancouver 2010 Winter Olympics.
"In most cases, dogs were shot more than once or had their throats slashed before they were dumped into what is described in the documents as a mass grave," says an SCPA statement, adding that animal cruelty charges are pending.
The worker – who OAW says ceased managing the business shortly after the culling – first saw a clinical counselor on April 28, 2010 and also visited his family physician and a psychologist. In an Oct. 3, 2010 assessment, the decision says, the psychologist noted that the worker "complained of panic attacks, nightmares, sleep disturbance, anger, irritability and depressed mood since culling approximately 100 dogs."
There is some dispute over the number of dogs euthanized. In a Feb. 2 joint statement between OAW and the worker, Robert Fawcett, the former general manager estimated that 50 dogs that were "'too old' or 'sick' and 'not adoptable'" would be euthanized. The statement also says that "considerable efforts" were made to arrange for dogs to be adopted, which were "not as successful as hoped."
The WorkSafeBC decision adds that "a veterinarian was contacted, but refused to euthanize healthy animals."
OAW also disputes claims that it instructed Fawcett to euthanize the dogs in the manner described in the report. "There were no instructions given to Mr. Fawcett as to the manner of euthanizing dogs on this occasion, and Mr. Fawcett was known to have very humanely euthanized dogs on previous occasions," the joint statement says.
The company admits that it was aware of the "relocation and euthanization of dogs at Howling Dog Tours Whistler Inc in April 2010, but OAW expected this to be done in a proper, legal and humane manner. We only learned otherwise on Friday, January 28, when we read the [WorkSafeBC] ruling for the first time."
Since the incident, the company says it has improved safety protocols. "Guns are no longer allowed on site and the companys new policy is that euthanasia must be performed at a veterinary office," the release says.
On Feb. 2, BC Premier Gordon Campbell announced that he appointed Dr Terry Lake, a veterinarian and MLA for Kamloops-North Thompson, to lead a task force to review the case. "The task forces review will examine the circumstances leading up to the killing of the dogs, as well as the chain of events following any initial reports of the killing to WorkSafeBC or any other agencies and why the information was not communicated to appropriate authorities." (WCxKit)
In response, WorkSafeBC says in a statement that it "has never encountered a situation like this. We will be considering the direction and guidance that should be provided within the organization regarding reporting to other agencies."
Sad, very sad situation. The one dog who attacked the workers should receive an award, posthumous. This brave dog is my hero.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
Your company needs to negotiate for the right to select legal counsel in any case where the exposure is within the company's retention level.
Often, in-house counsel wish to use lawyers previously used by the company on similar claims, but cannot do so unless such independent, outside lawyer is on the carriers “approved” list. (WCxKit)
The right to “select” counsel is different from the right to “suggest” or to “be consulted on” the selection of counsel because it allows the company to use an attorney of its choice.
Although carriers have strict criteria for attorneys on the “authorized approved list of attorneys,” the insured may have business reasons, other than purely objective criteria, for desiring to use an attorney not on the list. Bear in mind, sometimes the local attorneys who defend the insured are employed by “captive” law firms on the insurer’s payroll who will defend only the very narrow “insured” issue.
For example, a company may desire a broader defense for a workers compensation claim wherein the defense attorney considers employment, labor and injury management issues rather than just the narrow issue of whether the injury was work-related.
The insured should retain the right to request and select private investigators and have the right to specify the type of investigation needed.
There is a huge difference between an “activities check” and a “sub-rosa investigation.”
An activities check is limited to making inquiries and usually does not include in-depth, undercover, videotaped surveillance of the claimant’s abilities.
The company aggressively controlling workers compensation claims may want to right to select the investigator of its choice because it has had previous success with a local investigator or a certain firm it uses nationwide.
ASI specifies copies of all investigative reports be forwarded to the insured.
Another negotiating point — an insured company may request all settlements over, say, $10,000 be considered for structured settlement, and may reserve the right to select a structured settlement company of its choice and/or to obtain competing bids from financially sound structured settlement companies.
Some companies prefer to purchase structured settlements from firms affiliated with their company or with their broker, rather than with the insurer.
One insurer had an “authorized list” containing the name of only one structured settlement company, also owned by the insurer.
By contrast, another well-known insurer considers, as standard operating practice, every settlement over $5,000 for a structured settlement.
The insured saves money and the carrier earns a commission from the structured settlement placement creating a winning situation for both.
Managing claims and litigation is nearly impossible without complete and explicit account servicing instructions (ASI).
Also known as account instructions, claim service instructions or account handling instructions, ASI represent the agreement or understanding between the insured and the field adjusters at the insurer’s branch offices that guides the handling of all suits and claims, both litigated and non-litigated.
These instructions should be disseminated to all your branch offices across the country.(WCxKit)
The ASI includes information about how claims are to be handled in every line of insurance including workers compensation, products liability and automobile insurance. (Third-party administrators who provide claims servicing without insurance also use ASI to guide their adjusters.)
When developing your ASI, be sure you have the right to chose counsel. Find out how to gain that right #WorkersComp.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
In New Jersey, every employer who has any employees is required to carry workers compensation insurance.
New Jerseys Workers Compensation Act requires coverage for corporate officers. Employees of sole proprietors (other than the principal owner) and employees of partnerships (except for the partners) must have workers compensation coverage. Employers of domestic labors and farm workers must provide workers' compensation coverage.
New Jersey has a very liberal definition of employee. While the workers compensation statute does not require an employer to provide work comp insurance for independent contractors, many individual independent contractors who would not be considered employees in other states will be considered an employee in New Jersey. If the employer retains the right to determine what should be done and how it will be done, or if the work that is done by the independent contractor is an integral part of the activities of the business, New Jersey will consider the individual an employee. (WCxKit)
Obtaining Coverage:
To obtain workers compensation coverage in New Jersey, the employer has two options which are:
1. purchasing a workers compensation insurance policy from an insurance company authorized to do business in New Jersey
2. obtaining approval from the New Jersey Commissioner of the Department of Banking and Insurance to act as an independent self-insurer, along with the posting of security if requested
Governmental agencies in New Jersey are required to carry workers compensation insurance, but are not required to purchase it from an authorized insurance company or to be self-insured. They can participate in a governmental insurance pool, or they can maintain a separate appropriation for workers compensation.
Claim Reporting:
The employee must report the injury to the employer within 90 days of the injury. The notice can be given the employees supervisor, personnel department or anyone in a position of authority for the employer. The employer upon learning of the accident is required to report the workers compensation claim to the insurer immediately. The insurer is required to file the First Report of Injury form with the New Jersey Division of Workers Compensation within 21 days of the claim being reported to them.
Medical Benefits:
The employer selects the medical provider. If the employer refuses to provide medical treatment, the employee is free to select the medical provider. In an emergency situation, the employee may be treated at any emergency care facility or the emergency room of a hospital without the employers approval. After the initial emergency care, the employee must treat with the employer's chosen medical provider. All reasonable and necessary medical treatment including prescriptions and hospitalization are covered under New Jersey's workers compensation statutes for as long as the employee needs medical care.
Temporary Total Disability Benefits:
The temporary total disability (TTD) benefits are calculated as seventy percent of the employees average weekly wage, not to exceed the statutory maximum rate or to fall below the statutory minimum rate. There is no annual cost of living adjustment for accidents after January 1, 1980. The maximum amount and minimum amount of TTD benefits is changed annually by the Commissioner of Labor and Workforce Development. The maximum TTD benefits per week for injuries in 2011 are $792.00 per week. The state minimum weekly benefit for 2011 is $211.00.
The first 7 days of disability (the waiting period) is not paid to the injured employee unless the employee is disabled for more than 7 days. TTD benefits can be paid until the employee returns to work, or reaches maximum medical improvement, or for a maximum of 400 weeks.
Permanent Partial Disability Benefits:
New Jersey employees are paid permanent partial disability (PPD) benefits for any permanent loss of body function suffered as the result of an on-the-job injury. Once the employee has reached “permanent and stationary” (maximum medical improvement), the employee is paid PPD weekly and PPD is paid after TTD benefits have ended. In 2011, the weekly maximum for PPD is $792 and the weekly minimum is $35. The maximum amount of time for PPD is 600 weeks.
New Jersey uses a Schedule of Disabilities for injuries for arms, legs, hands, feet, fingers, toes, vision and hearing. The loss of an arm is worth 330 weeks of indemnity benefits. The number of weeks of indemnity benefits decreases down to the loss of a small toe being worth 15 weeks of indemnity benefits (with a week calculated the same as TTD). For example, if the treating doctor gives the employee a 15% disability rating to the arm, and the employee's TTD rate was $400 per week, the employee will receive $19,800 ($400 X 330 X 15%). When a member is amputated, an additional 30% is added to the schedule amount. New Jersey does not have any provisions for compensation for disfigurement.
Injuries to the back, heart and lungs are not scheduled injuries. When a New Jersey employee has a non-scheduled injury, they will continue to collect TTD benefits, up to 600 weeks or until they are able to return to work.
Permanent Total Disability Benefits:
New Jersey permits the
employee to collect 450 weeks of indemnity benefits when the employee can not return to any type of gainful employment. Benefits can be continued conditionally beyond the 450 weeks provided the employee has accepted the prescribed rehabilitation and can show that she/he remains totally disabled. The permanent total disability benefits are paid weekly, based upon 70% of the employees average weekly wage, not to exceed the state maximum ($792 for 2011) or to fall below the state minimum ($211 for 2011).
Death Benefits:
The burial expenses in New Jersey are covered for a work-related death up to $3,500. If there is one beneficiary, the death benefits equal 50% of the deceased employee’s average weekly wage. For each additional beneficiary, an additional 5% is added up a maximum of 70%, but not to exceed the maximum weekly benefit rate. The death benefits are payable to a surviving spouse, or spouse and children, or any other family member who can prove dependency upon the deceased employee. A judge for the Department of Labor and Workforce Development hold a hearing to determine how the death benefits are divided by the dependents. Children are defined as being under the age of 18, or under the age of 23 if enrolled full time in an accredited educational institution. A surviving spouse receives the death benefit for life until the surviving spouse remarries.
Vocational Rehabilitation:
New Jersey employees who are receiving permanent total disability benefits are referred to the New Jersey Division of Vocational Rehabilitation at the 450 week mark. Permanent total disability benefits may be stopped unless the employee has participated in physical or educational retraining as required by the Division of Vocational Rehabilitation. Permanent total disability benefits continue if the Division of Vocational Rehabilitation certifies the employee is still totally disabled.
NOTE: State laws change frequently. Nothing in this article is meant as legal guidance.
For legal advise on a particular states most current law, please consult with you legal adviser.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
An attorney represented the client from September 2007 through May 16, 2008, when the employer/workers compensation carrier offered $ 7,500 to resolve the case. Before the offer was accepted, the client discharged the attorney and hired a new attorney.
Three days later, the new attorney settled the case for $ 10,000. The JCC denied the attorneys entitlement to fees under a quantum meruit theory, concluding that because the attorney did not "secure" any benefits, no fees were due under § 440.34(4), Fla. Stat. (2003). (WCxKit)
The appellate court held that although the new statute limited the amount of attorneys fees that could be paid based on the amount of benefits secured, it did not, either expressly or by implication, suggest that the Legislature intended to abolish a discharged attorneys right to obtain an equitable quantum meruit share of the recovery by way of a charging lien.
The court remanded the case to the JCC to make the appropriate determination as to whether the attorney was entitled to a quantum meruit charging lien and the appropriate amount. [
See Rosenthal, Levy & Simon, P.A. v. Scott, 17 So. 3d 872, 2009 Fla. App. LEXIS 13672 (Fla. 1st DCA 2009); see
Larson's Workers Compensation Law Ch. 133, § 133.03 [5] n41
Copyright 2011 LexisNexis. All rights reserved. This material is excerpted from Larson’s Workers Compensation Law. Reprinted with permission.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
A Liverpool company has been fined $100,000 and ordered to pay WorkCover’s legal costs after a 58-year-old Minto man was crushed to death when a loading ramp collapsed after a hydraulic lifter malfunctioned at a demolition site in Fairfield in January 2008. P&D Transport NSW Pty Ltd operated a trucking business transporting oversize plant and equipment to and from construction sites. (WCxKit)
On Jan. 29, 2008, P&D Transport was called to a demolition site in Fairfield where a company had requested transportation of an excavator. The excavator was driven by the deceased onto P&D Transport’s low-loader trailer attached to the prime mover via the loading ramp, which was raised and lowered by a hydraulic lifter attached to the rear of the truck.
After loading the excavator on to the deck of the trailer, the deceased dismounted and was found by a co-worker under one side of the ramp. The incident was caused by the failure of a pivot pin that supported the hydraulic cylinder, causing the loading ramp to collapse, and crushing worker underneath.
The sole director of the transport company, Paul Houghton, was separately charged and fined $5000 by the Court and ordered to pay a proportion of WorkCover’s legal costs. The company and its director pleaded guilty to a breach of section 8(1) of the Occupational Health and Safety Act 2000 after WorkCover began prosecution proceedings.
In handing down its finding the Industrial Court of NSW found that the defendants did not have in place any system for periodic inspection of the trailer. In particular, the defendants did not have in place any system that required a daily inspection of the pivot pins used to secure both the top and bottom of each hydraulic ram used to raise and lower the loading ramps attached to the trailer.
In the Court’s view the risk to health and safety was foreseeable by both the corporate and personal defendant. The Court considered it appropriate to draw attention once again to the need for employers and contractors in the trucking, demolition, building and construction industries to ensure employees are not exposed to risks through operating and transporting heavy machinery.
WorkCover NSW’s General Manager of Work Health and Safety Division John Watson said safety for workers should be the highest priority for employers, particularly in workplaces where heavy machinery is being handled.
“Employers must assess the risks to people’s health and safety from hazards such as those involved with loading and unloading heavy items of plant onto and off of trucks. Employersshould be consulting with workers about how best to control risks in a workplace,” he said. (WCxKit)
“Employers must also ensure workers are provided with adequate training and supervision to ensure their safety, including safety procedures such as loading and unloading procedures and procedures for daily or preoperational checks of plant and equipment.”
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
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