A Boston day care center owner was sentenced after pleading guilty for failing to pay her employees, Attorney General Martha Coakley’s Office announced.

 

 

Regina Daugherty, 52, of Northborough, and her business, Kids Palace Learning Center, LLC, of Boston, pleaded guilty June 28, 2011, in Boston Municipal Court to four counts of failure to pay wages. Boston Municipal Court Judge Sally Kelly sentenced Daugherty to one year of probation and ordered her and her business to pay $3,101.72 in restitution.(WCxKit)

 

 

After receiving four separate complaints, the AG’s Fair Labor Division began an investigation into Kids Palace and Daugherty’s business practices. The employees claimed that Daugherty and her company failed to pay them for work they performed at her daycare center in Boston on various dates from August 2007 to September 2009. Investigators reviewed payroll and bank records and discovered that Kids Palace and Daugherty failed to make payments to the four employees for four separate pay periods.(WCxKit)

 

 

“We are pleased that the court has recognized the rights of workers by holding this owner accountable for not paying her employees the wages they were rightfully owed,” Coakley said. “At a time when many people are struggling financially in this economy, our office is committed to ensuring that employees receive the wages they are entitled to under the law.”

Posted in Employment Law Issues, Legal Doctrines |

When most people think of labor unions and workers compensation, they think of the role of unions in supporting questionable workers compensation claims. When a factory closes and then most of the union work force files belated worker's compensation claims, at the encouragement of the local labor union, the union gets a black eye and a soiled reputation.

 

 

It does not have to be this way. Unions can have a positive role. When unions support safety improvements, they are providing an important benefit to their members and they are assisting the employer in lowering the cost of workers compensation. Union support for OSHA programs can be instrumental in improving the safety within an industry. Unions have also promoted the use of safety gear including hard hats and protective eyewear. (WCxKit)

 

 

While unions have often promoted safety in the work place, unfortunately some public sector unions have fought against drug testing of employees, resulting in unnecessary injuries to employees and unnecessary workers compensation expense for the employers. However, some unions in the private sector have worked with employers to develop and implement fair and equitable drug testing policies.

 

 

In the states where the employers do not have to hold open a job for an injured employee, unions can make a difference. Often the union will have a labor agreement requiring the employer to hold open the injured employee's job until the employee can return to work. In addition, the union can track workplace accidents and make recommendations on ways to reduce the number of accidents. 

 

 

The union representative or steward will normally guide the injured employee through the work comp process, starting with arranging immediate medical care for an employee hurt on the job. This is a good thing as the sooner the employee is treated for an on-the-job injury, the higher the probability of a faster recovery. However, the union involvement can quickly go from good to bad when the union encourages an employee to stay off work longer than necessary because the union has some other quarrel with management.

 

 

When unions boast that the union members receive more in workers compensation payments than non-union employees do, they may think that sounds like a good thing, but in reality, it is stating they create more waste in the workers compensation system. Every state requires the exact same benefits for medical, indemnity and vocational rehabilitation for non-union members as they do for union members.

 

 

Contrary to what some union leaders tell their members, employers do not have unlimited funds for workers compensation. Unions often err when it comes to workers compensation by putting the “rights” of one injured worker ahead of the best interest of all employees and the employer. When a union files a grievance on behalf of an injured worker who is overstating his/her injury or an injured worker who is trying to commit workers compensation fraud, any benefits paid to the injured worker reduces the amount of money the employer will have to provide benefits to legitimately injured workers. (WCxKit)

 

 

The same logic applies when the union representative or union steward automatically requires (“request”) all injured employees to go an attorney chosen by the union to represent the employee in their work comp claims. The additional expense that the attorney creates in the claim comes out of the employer's pocket whether the employer is self-insured, or pays it latter through higher insurance premiums. The additional cost of the represented workers compensation claim reduces the amount of money the employer has for work comp and other employee benefits.

 

http://corner.advisen.com/partners_wctoolkit_book.html

 

Posted in Union Issues, WC 101 |

 

 

More than 4.1 million work-related injuries and illnesses were reported, but due to underreporting, the true extent of job injuries is two to three times greater—about 8 million to 12 million job injuries and illnesses each year, according to the AFL-CIO. (WCxKit)

 

 

 

 

 

 

 

 

"Our work is never done when it comes to workplace safety — the tragedies in the last year at Massey Energy's [Upper] Big Branch mine and the BP Gulf Coast oil rig have shown us that," said AFL-CIO President Richard Trumka. (WCxKit)

 

 

 

 

 

 

Posted in Medical Issues, Safety and Loss Control, WC 101 |

 

Legal migration has increased in the past five years, thanks in large part to better management of the visa process by American consulates in Mexico, says Peter Rousmaniere, columnist for Risk & Insurance, and an expert in workers compensation. But, he writes, illegal migration has declined, and not primarily due to stronger immigration enforcement by the United States. The major factors are smaller families, better education resources in Mexico, and better job projects in Mexico if one is educated.

 

 

Rousmaniere runs a blog called Working Immigrants that collects and exchanges information on the business of immigrant work: employment, compensation, legal protections, education, and mobility. A Harvard College and Harvard Business School graduate, he brings 20 years’ experience in worker safety and health to this effort.

 

 

He was drawn to a July 6 New York Times article by Damien Cave titled Better Lives for Mexicans Cut Allure of Going North — Economic, demographic and social changes in Mexico are suppressing illegal immigration as much as the poor economy or legal crackdowns in the United States.

 

 

Specifically, Rousmaniere was inspired by this quote from Douglas S. Massey: “No one wants to hear it, but the flow has already stopped. … For the first time in 60 years, the net traffic has gone to zero and is probably a little bit negative.” Massey is co-director of the Mexican Migration Project at Princeton, an extensive, long-term survey in Mexican emigration hubs. He said his research showed interest in heading to the United States for the first time had fallen to its lowest level since at least the 1950s, according to the Times article.

 

 

Cave writes in his article, “American census figures analyzed by the nonpartisan Pew Hispanic Center also show that the illegal Mexican population in the United States has shrunk and that fewer than 100,000 illegal border-crossers and visa-violators from Mexico settled in the United States in 2010, down from about 525,000 annually from 2000 to 2004.”

 

 

Cave goes on to report, “Deportations have reached record highs as total border apprehensions and apprehensions of Mexicans have fallen by more than 70 percent since 2000.”

 

 

Cave also sites use of birth control (smaller families), better education and employment opportunities, and better government services such as trash pick up as motivations for staying in Mexico. These reasons, coupled with an easing of legal immigration requirements and an increase in laws making living in the U.S. illegally much more difficult, are reasons for the decline in illegal immigration, Cave reports.

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.

 

Posted in Employment Law Issues |

This week at the Workers Compensation Roundtable discussion group on Linkedin there are several new discussions, including this one from Deborah Pfeifle: What is the average life span of a WC claim from first report of injury through closure, nationally? What is the #1 issue that precludes claim closure?

 

Charlie Larson of South Dakota responds with, “We are allowed to file written discovery and conduct depositions. After the petition is filed, we have 30 days to answer, each side has 30 days to answer discovery, and after obtaining a medical authorization, it takes forever to get medical records. After that is done, the depositions begin. I've had some cases drag out for years, but that typically is the result of a claimant attorney not moving the case forward.”

 

He encourages participants from other states to write their comments.

 

Mike Benishek writes that, while he knows of no national figures for claim closure, his “med-onlys usually close out in 60 days. Lost time varies by claim.” He adds, “As for what precludes claim closure, #1 is Attorneys (both claimant & defense attorneys) and the ever popular Medicare Set Aside (MSA) requirements.”

 

And Karen Rutledge writes, “I am not certain about national standards, but in TX if we could obtain claim closure on an indemnity case within 105 weeks it was a success as there is lifetime medical treatment option. In OK and CO, an indemnity case with litigation could be up to 2 years. I agree with Mike medical only was usually 60 days as you had to wait for medical providers to submit all the bills.”

 

Though an older discussion, the topic asking which state has the worst WC laws is still drawing comments. This week David Sheck, a WC and PEO broker for 20 years, writes, “I would say it is a tie between Ca and NY. Generally states in the Northeast are close runner ups.” And participant Mark Walls directs readers to a document showing the Oregon WC premium ranking summary.(WCxKit)

 

John Winkler says, “NC should be in the running as well — No cap on TT and the requirement to return injured workers to ‘suitable employment’ can be a bear with an Avg. cost per claim 34% higher than the median of 46 other states and medical costs increasing in cost per visit.”

 

And Greg Krohm adds, “I am really surprised by the near consensus on CA, IL and NY. The next interesting question is: What specific system features are the most disliked by employers (payers)? I suspect the reasons would be diverse and different in each of the above states, e.g., IL fee schedule is being racked over but the CA fee schedule is not bad relatively speaking. Hearing delays may be a big problem in one state but not in another. IL has no treatment guidelines and NY and CA guidelines have been the focus of a lot of discussion. Another interesting question: would organized labor pick a different list of states?”

 

And lastly, a new discussion was brought up by Thomas, who asks, “Does anyone have experience with the use of EBT cards for scheduled indemnity benefit transfers? Vendor recommendations?”

 

Join us at Linkedin's Workers Compensation Roundtable right now and right here! Better yet, invite your friends so they too can become informed on hot topics in the Workers Compensation industry.(WCxKit)

 

Workers Compensation Roundtable is jointly managed by people dedicated to the concept that workers compensation is a manageable line on your expense ledger, and that informed professionals are empowered achievers. Workers' compensation is not simply a cost of doing business, it is a cost that can be controlled. Beginning with an assessment of cost drivers, benchmarking data, and integrating the solutions, employers can reduce workers' comp costs 20 to 50 percent. With proper information, professionals managing compensation claims can reduce costs and improve outcomes for all stakeholders in the process. This group is for employers, business owners, risk managers, HR managers, insurance executives, and brokers to discuss the obstacles and strategies to overcome them.

Posted in Professional Development Issues |

When an employee is injured due to the negligence of someone else, they have the legal right to pursue a claim against the person or company that caused them the injury. However, in most situations the employee will elect to pursue a worker compensation claim against the employer. When it is said an insurance company or self-insurer has the “right of subrogation”, it means that the insurer, upon payment of a claim due to the negligence of someone else, is substituted for the employee in the right to pursue the recovery of damages from the person or company who caused the injury. Some of these subrogation claims will be product liability actions against the manufacturer of equipment that injured on which an employee was injured.

 

 

Subrogation is based on the principles of negligence and tort, or better understood as “someone else is at fault and they should pay for it.” Workers compensation adjusters who are cross-trained as liability adjusters seldom miss the opportunity to pursue subrogation against another party. Unfortunately, in today's insurance world, most workers compensation adjusters are specialists in work comp and have little, if any, background in liability claims. This results in the work comp adjusters often missing subrogation opportunities. (WCxKit)

 

 

The workers compensation adjusters normally recognize subrogation in situations that occur frequently like car accidents. The work comp adjusters know that another person caused the car accident and they can recover from the driver (or the insurance company) of the other car. It is unique or unusual situations where subrogation is often overlooked by the work comp adjuster. Some actual examples of missed subrogation include:

 

1.      The deliveryman bitten by the homeowners dog

 

2.      The meter reader who stepped in a hole in the yard

 

3.      The policeman assaulted during the arrest of a criminal suspect

 

4.      The electrician shocked / electrocuted by the faulty work of a prior electrician

 

5.      The factory worker injured by a machine malfunction

 

6.      The construction worker injured due to a ladder failure (or the failure of scaffolding)

 

7.      The carpenter injured by a nail gun that malfunctioned

 

8.      The office worker who tripped on new carpet that was installed incorrectly

 

9.      The strip club dancer whose dance pole collapsed unexpectedly

 

10.The preacher who banged his hand on the pulpit to emphasize a point and the pulpit splintered, puncturing his hand

 

11.The grocery store clerk who opened a newly delivered box of produce and was stung by a scorpion

 

 

The above list of missed subrogation opportunities is only a very small example of possible subrogation recoveries. The actual list of subrogation possibilities is almost endless.

 

 

There is one major benefit to the insurance company or self-insurer from the pursuit of subrogation – every dollar recovered through subrogation goes straight to the bottom line of the company's financial statement. The amount paid on the claim is immediately apart of the money going out – the liability has been incurred and paid.   When a dollar is recovered through subrogation, it is profit added immediately to the bottom line.

 

 

With the financial aspect of subrogation, you would think the insurer or self-insurer would carefully search for subrogation opportunities.   However, when the work comp adjuster is reviewing the file, if they do not understand tort law, they will not recognize the potential for subrogation. Unfortunately, the work comp adjuster's supervisor or claims manager will often not recognize subrogation either, as their claims background and expertise is in workers compensation, not liability claims or tort.

 

 

To find the missed subrogation opportunities, the workers compensation claims office should bring in an outside, independent claims auditor who has both an extensive background in work comp claims and an extensive background in liability claims. It takes this dual knowledge to perform a subrogation audit successfully.

 

 

The subrogation audit will identify missed subrogation opportunities and maximize the recoveries of the money paid on the workers compensation claims. The sooner the subrogation opportunity is identified, the easier it is to document the claim with the proper investigation needed to pursue the subrogation. However, to maximize the recoveries, the subrogation audit should include not only the open files, but also all closed files that are still within the statute of limitations. (WCxKit)

 

 

If you are interested in a subrogation audit for your company, please contact us as we have experienced, independent subrogation auditors that are willing to assist you in the recovery of previously missed subrogation opportunities. Our subrogation auditors can work on site or remotely with electronic files, whichever is best for your situation. The auditors can review all files of just the files over a pre-determined dollar threshold. Most subrogation audits can add money to your bottom line.

 

 

 

 

 

Posted in Claim Audits & File Review, Product Liability, TPA and Claims Administration, WC 101 |

Following an investigation into alleged altered medical documents, troopers assigned to the Louisiana State Police Insurance Fraud Unit arrested Hollis Kagler, 43, and charged her with one count of insurance fraud.

 

According to State Police, the investigation stemmed from a complaint made by the National Teachers Associates Life Insurance Company (NTALIC) alleging that Kagler had submitted fraudulent medical invoices to support an injury claim. NTALIC specializes in offering supplemental health and life insurance programs to employees of the educational community, government agencies, and private businesses throughout the United States.(WCxKit)

 

 

May of 2010, Kagler claimed to have injured her back while moving furniture and submitted a hospital bill in the amount of $57,462 to Teachers for reimbursement. After Teachers questioned the validity of the bill, Kagler resubmitted an altered medical invoice to show that she had been admitted to the hospital.

 

 

The investigation concluded that Kagler intentionally attempted to defraud Teachers by submitting the fraudulent medical invoices.

 

 

In late June, troopers arrested Kagler at her Franklinton residence and booked her into the Washington Parish Jail without incident.(WCxKit)

 

Editor’s Note: All individuals are innocent until proven guilty in a court of law.

 

 

Posted in Fraud and Abuse, Medical Cost Containment & Managed Care |

Arizona-based High-Tech Institute Inc., doing business as Anthem College Online, will pay $260,000 as part of a settlement of a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.

 

 

In its suit in U.S. District Court for the District of Arizona (Civil Action No.CV-09-2041-ROS), the EEOC charged that Anthem College subjected female employees to repeated sexual harassment by supervisors. (WCxKit)

 

 

According to the EEOC, six female admissions representatives working at the Phoenix, Ariz., location were frequently sexually harassed by three supervisors.  EEOC allegations included that the supervisors engaged in unwanted sexual touching and comments, writing sexually suggestive e-mails and soliciting sex from employees during unwelcome visits to the their homes in the early morning hours. Some of this abusive behavior was witnessed by other Anthem College employees, the EEOC said.

 

 

The EEOC maintained that Anthem College knew or should have known about and tolerated this sexually hostile work environment caused by its supervisors. The agency said the company’s former human resource manager wrote that Anthem College employees were fearful to come forward because an alleged harasser was seen drinking and socializing with upper management and that there was blatant disrespect to employees and rampant poor management.

 

 

According to the EEOC, the company unreasonably delayed removing a class member from under the supervision of an alleged harasser who, the company’s own former human resources manager testified, was a “psychopath.” The EEOC argued that despite Anthem College’s knowledge about the harassment, the company failed to take reasonable steps to investigate and remedy the harassment.

 

 

“Employees who have an official or strong duty to communicate to management are considered part of management,” said EEOC Regional Attorney Mary Jo O’Neill of the Phoenix District Office, which originated the legal action. “Here, there was a breakdown in reporting by persons, whose job descriptions required them to report any issues affecting the normal operation of the admissions department, including sexual harassment. They failed to do so, with serious consequences.”

 

 

In addition to the settlement requiring Anthem College to pay $260,000 to the former employees, Anthem College also must investigate any further complaints of sexual harassment, provide training for managers and supervisors on conducting sexual harassment investigations and post a notice that harassment of Anthem College employees will not be tolerated. (WCxKit)

 

 

EEOC Phoenix District Director Rayford Irvin added, “We insist that companies fulfill their obligation to protect employees from sexual harassment and provide the necessary training to ensure this protection."

 

 

Posted in EEOC Discrimination Laws, Safety and Loss Control |

 

A far-reaching ruling by the Superior Court of New Jersey Appellate Division could alter the divide between work-related injuries and personal medical conditions. In the case of James P. Renner vs. AT&T, two superior court judges, Cuff and Fasciale, agreed with the ruling of the workers compensation judge; a pulmonary embolism brought on by the requirements of the job is a compensable injury under New Jersey's workers compensation statutes governing cardiovascular injury or death.

 

 

In the workers compensation claim, the claimant’s wife, Cathleen Renner, died from a pulmonary embolism. Renner was a salaried manager for AT&T and worked for the company for 25 years. She often worked from home and spent many hours in front of her computer to accomplish the projects and task assigned to her. She often worked all types of hours, day and night, even though she was officially a nine-to-five employee.(WCxKit)

 

 

On the night of Sept. 24, 2007, Ms. Renner started working on a project from home. She told her husband by telephone that she had a deadline to meet and was going to work through the night. While AT&T and Mr. Renner dispute how long Ms. Renner worked that night, it is known that she sent an email to a coworker at 12:26 a.m.. When her son awoke at 7 a.m. Ms. Renner was at her computer working. At 9 a.m. she advised another employee that she was not feeling well, but would keep working to complete the project. At 10:30 a.m., Ms. Renner sent another coworker an email that she had finished the project. At 11:34 a.m., Ms. Renner called 911 as she was having trouble breathing. She died on the way to the hospital of a pulmonary embolism.

 

 

Death benefits for the workers compensation claim was denied by AT&T because a pulmonary embolism is a personal medical condition. Mr. Renner filed a claim with the New Jersey Department of Labor where the workers compensation judge applied the occupational disease standard and awarded death benefits. The Superior Court Appellate Division reversed and remanded to the workers compensation judge for consideration under the statutes governing cardiovascular injury or death. The workers compensation judge then awarded death benefits under the cardiovascular statutes and AT&T appealed again.

 

 

In the appeal, the doctor representing Mr. Renner testified that Ms Renner's sitting for an extended period of time precipitated a slowing or stopping (stasis) of the blood flow which lead to the formation of blood clot in her leg. The blood clot eventually broke free, traveled to her lungs and resulted in her death. The doctor concluded that Ms. Renner's sitting at her desk for a long period of time contributed to a material degree in her death. The doctor testifying on behalf of Mr. Renner acknowledged that the claimant had other risk factors including the use of birth control pills and obesity, but concluded since the blood clot was unorganized (per the autopsy report), it had developed during the time period she was working. The doctor further concluded that the blood clot developed five to seven hours prior to her death, as she had felt pain in her leg at approximately 7 a.m.

 

 

The doctor representing AT&T was of the opinion the pulmonary embolism was caused by the combination of risk factors the claimant had prior to her death. However, the AT&T legal expert acknowledged “it would certainly be less likely” for Ms. Renner to have a pulmonary embolism had she not been working that day.

 

 

The workers compensation judge had looked at whether or not Renner’s inactivity, which brought on the blood clot, was greater while working, than her inactivity while not working. Mr. Renner testified that Ms. Renner was always busy when she was not working including taking the kids to various school activities, always up and out, taking her mother to dinner, taking her mother-in-law to dinner, and transporting the kids to and from friends' homes. It was concluded that Ms. Renner lead an active life when she was not working, but her job required her to spend unusually long hours at her computer and the blood clot developed as a result of her work inactivity.

 

 

The Superior Court Judges reviewed whether or not the workers compensation judge had properly applied the state statutes on workers compensation for cardiovascular causes. The workers compensation judge concluded the preponderance of credible evidence showed the death of Ms. Renner was caused by her work effort, which was in excess of the wear and tear of her daily living within reasonable medical probability. The superior court judges concluded the workers compensation judge had applied the law correctly.(WCxKit)

 

 

The dividing line between what is a work-related disease and what is not can be difficult to define. In cases of this nature, it will often be the preponderance of medical evidence that determines whether or not work brought on the medical issue. For another look at idiopathic injuries, please also see our article, Idiopathic Injuries and Workers Compensation.

 

Posted in Legal Doctrines, Medical Issues |

 

 

 

HSE notes the underlying five-year trend for workplace fatalities continues downward. The number of such deaths in 2010-11 were 171 workers killed, lower than the five-year average. Despite the downward trend there are a number of aspects that give serious cause for concern.(WCxKit)

 

 

 

 

 

 

“Tragically, today’s announcement brings home in graphic terms the consequence of not effectively managing workplace hazards. Had that commonsense and logical course of action been taken in managing workplace hazards it is quite possible that those 171 workers would still be alive and going home to their families at the end of the working day.(WCxKit)

 

 

Posted in Safety and Loss Control, WC in Other Countries (International) |