Category Archives: unemployment


Shortcuts at the Social Security Administration Mean Mistakes

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Today’s post comes from guest author Roger Moore from Rehm, Bennett & Moore.

Recently, the Wall Street Journal reported that the Social Security Administration (SSA), frustrated by the backlog of applications for disability benefits, started pressuring the 140 doctors the agency uses to help evaluate some of the claims. In an effort to encourage the quick processing of claims doctors were paid a flat rate of $80/case in stead of the previous $90/hour to review the cases. Many times these cases have hundreds of pages of records to be reviewed and can turn on a few sentences.

In this setting it’s every more important to seek the help of a treating physician in offering a supportive report.

Also, doctors were assigned to evaluate conditions that were not in their areas of expertise. One of the more interesting quotes came from Neil Novin, former chief of surgery at Baltimore’s Harbor Hospital, who worked for Social Security part time for about 10 years. He said “People who shouldn’t be getting [disability] are getting it, and people who should be getting it aren’t getting it”. In my experience Continue reading »

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Truck Drivers Beware – Your Insurance May Not be What You Think

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Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.

There is a scam out there and truck drivers are the victims, especially if they are seriously injured in a trucking accident. It works like this: an out of work driver hears about a job and fills out an application with a national trucking company. He then gets a call saying he has been accepted as a driver, contingent on a physical exam and a drug test. The driver is then asked to show up at work on an appointed date for his first delivery job. When he shows up he is asked to “sign papers” which allow him to lease/own the truck as he drives it across the country, and he signs a contract that declares that he is an independent contractor (although in reality the trucking company controls the deliveries and is the only source of revenue for the driver). Further, he is required to purchase accident insurance through a broker designated by the trucking company and the premiums are taken out of his paycheck. Because the driver is anxious to work again and is not particularly experienced in reviewing legal documents the driver signs the papers, gets in the truck and begins working again as an interstate truck driver.

The costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.

Like most of us, these drivers never expect to be in a serious accident. If they unfortunately do have an accident while driving the truck, they look to the accident policy they purchased. If they are disabled, it pays the same benefits as workers’ compensation and provides medical coverage. Many drivers think they are actually on workers’ compensation. The catch is that all benefits stop after 104 weeks (2 years). If after that time if the driver is still disabled and still needs medical care, it is a shock to find out none is available under this contract.

Is there no hope for the truck driver under these circumstances?

Why 104 weeks? Most states have workers’ compensation systems that require the claim be filed within 2 years. Since the 2-year period has run, the driver is out of luck and cannot file for workers’ compensation under state law. What happens if the driver needs additional surgery and continues to remain disabled? Most likely federal assistance programs like Medicaid or Medicare enter the picture and the costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.

If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires.

Is there no hope for the truck driver under these circumstances? Although it might be a tough fight, most workers’ compensation statutes specifically state that an employer cannot contract away its obligations under the Workers’ Compensation Act. Thus, the truck driver’s legal argument is that the contract designating the driver as an independent contractor was void as a matter of law. If the employee has been the subject of fraud, equity may allow the driver to go ahead and file a claim and pursue the action even through the 2-yr period has run. Under these circumstances, certainly in North Carolina, the driver would have an opportunity to pursue this claim. The lesson to be learned by truck drivers is not to assume that the contract you have innocently signed is valid. If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires. Finally, if you are asked to sign one of these contracts and you have options of other employment, you may want to decline this job offer and work for a company that is more ethical. Your livelihood and the welfare of your family may depend on this important decision.

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Out-of-State Work-Related Injuries: What You Need to Know

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Bedford, TX Construction Site

Today’s post comes from guest author Brian M. Wright from Causey Law Firm.

If you are a Washington resident working for an employer who operates in Washington and you are injured in another state, you probably have a Washington State workers’ compensation claim. Additionally, you might have a valid claim in the other state, as well. If you are injured outside Washington, or whatever state in which you normally work, it is important to evaluate your options and file wherever you might have a legitimate claim. It is possible that you have remedies available to you in more than one state.

 

If you are injured outside Washington, or whatever state in which you normally work, it is important to evaluate your options and file wherever you might have a legitimate claim. It is possible that you have remedies available to you in more than one state.

 

In Washington, we have agreements with other states that provide which state’s workers’ compensation laws apply when an employer takes its employees out of state. Those agreements apply to the workers of one state working temporarily in the other state. Washington currently has such agreements with Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming. If you are a Washington worker sent temporarily by your employer to one of those states and you are injured there, Washington is likely the only state in which you can file a workers’ compensation claim. Conversely, if you are an employee based out of one of the states with which Washington has an agreement and you are injured while working temporarily in Washington, your home state is likely the only state in which you can file a claim.

 

But what happens if you are not simply temporarily working in one of the states with which Washington has an agreement? What if you spend a significant amount of time in both, or even other, states? What if your employer is based in one state and you are based in another? Or better yet, what if you are injured in a state with which Washington has no agreement? In all of the above scenarios, you may have the ability to file your claim in multiple states. Generally, you will have the option of filing in:

 

1)    the state in which you were injured;

2)    the state in which you primarily worked; and

3)    the state in which you entered into your employment contract.

 

Yes, and.  The United States Supreme Court, in a case that settled the law once and for all back in 1980, decided that filing multiple workers’ compensation claims in multiple states does not violate the Constitution so long as each state’s system is credited for the benefits paid by the other states’ systems. In other words, you cannot be compensated twice for the same injury, but you can elect to file in multiple states in order to maximize the benefits that each state provides. Washington State, by law, explicitly allows you to file multiple claims in multiple states.

 

With an option of two or more states that might provide coverage, you may wish to select the state with the benefit program that better suits your financial situation and your needs. 

 

It is important to know your rights when you are injured on the job out of state, because the decision as to where to file your claim will have a direct impact on you and your family. Each state has a unique workers’ compensation system with a full spectrum of benefits, compensation rates, etc…  With an option of two or more states that might provide coverage, you may wish to select the state with the benefit program that better suits your financial situation and your needs. 

 

If you have been injured out-of-state, or while traveling in service of your employer, it is important to contact a workers’ compensation professional to assess your options.

 

Photo credit: nffcnnr / Foter / CC BY-NC-SA

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Nanotechnology in the Workplace

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Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.

During cancer research in 1986 an accident created the first man-made nanoparticle, an incredibly small particle which can absorb radiant energy and theoretically destroy a tumor. One type of nanoparticle is 20 times stronger than steel and is found in over 1,300 consumer products, including laptops, cell phones, plastic bottles, shampoos, sunscreens, acne treatment lotions and automobile tires. It is the forerunner of the next industrial revolution.

What is the problem? Unfortunately, nanoparticles are somewhat unpredictable and no one really knows how they react to humans. A report out of China claims that two nano-workers died as a result of overexposure, and in Belgium five males inhaled radioactive nanoparticles in an experiment and within 60 seconds the nanoparticles shot straight into the bloodstream, which is a potential setup for disaster. In a survey of scientists 30% listed “new health problems” associated with nanotechnology as a major concern.

Lewis L. Laska, a business law professor, wrote an article in Trial Magazine (September, 2012) in which he advised lawyers to become knowledgeable about nanoscience and be aware of the potential harm to workers and others who come in contact with this new technology, particularly because the EPA, FDA and OSHA have neither approved nor disapproved the use of nanostructures in products. It has been said that workers are like canaries in the cage (in mining operations), and if nanoscience is a danger then workers’ compensation lawyers will be the first to see it and appreciate it.

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The Vanishing Concept of a Job

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Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.

While reviewing some historical cases today, I realized that what is missing from the workplace is the concept of “a job.” America’s economy has dramatically changed, and so have jobs that were once available its workforce.

Even clearer is the fact that the concept of a job has disappeared. The idea of getting up in the morning and going regularly to a job has even vanished. The evolution changed slowly with the young generation claiming that a job cycle transformed from a lifetime position to one lasting two years. Then the next stage in the evolution occurred, where the employee became a transient worker and daily the job changed and no stable employer really exists.

This evolution has eroded the underlining framework of a functional workers’ compensation program and the delivery of benefits. The injured worker becomes lost to the system, and a safe and secure workplace becomes an illusion. Lost in the complexity is the adequate reporting of accidents and occupational disease, and the ability to accurately folllow the evolution of latent diseases and medical conditions.

“A new trend in the U.S. labor market is reshaping how management and workers think about employment, while at the same time reshaping the field of occupational safety and health. More and more workers are being employed through “contingent work” relationships. Day laborers hired on a street corner for construction or farming work, warehouse laborers hired through staffing agencies, and hotel housekeepers supplied by temp firms are common examples, because their employment is contingent upon shortterm fluctuations in demand for workers. Their shared experience is one of little job security, low wages, minimal opportunities for advancement, and, all too often, hazardous working conditions. When hazards lead to work-related injuries, the contingent nature of the employment relationship can exacerbate the negative consequences for the injured worker and society. The worker might quickly find herself out of a job and, depending on the severity of the injury, the prospects of new employment might be slim. Employerbased health insurance is a rarity for contingent workers, so the costs of treating injuries are typically shifted to the worker or the public at large. Because employers who hire workers on a contingent basis do not directly pay for workers’ compensation and health insurance, they are likely to be insulated from premium adjustments based on the cost of workers’ injuries. As a result, employers of contingent labor may escape the financial incentives that are a main driver of business decisions to eliminate hazards for other workers.”

Click here to read “At the Company’s Mercy: Protecting Contingent Workers from Unsafe Working Conditions”

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Intoxication, Work, And Workers’ Compensation Don’t Mix

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Today’s post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm.

Most of us know that, for both professional reasons and in the interest of safety, remaining sober while on the job is essential. However, it is important to also recognize that workers who are intoxicated at the time that they sustain a work injury stand a far lower chance of ever collecting workers’ compensation.

If the blood test shows the presence of alcohol or drugs, odds that the employee will be able to collect workers’ compensation are much lower.

This is because of the intoxication defense: if an employer can prove that intoxication was the cause of the workers’ injury, then they employer is not required to provide workers’ comp for that injury.

Now, there are some notable Continue reading »

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All This Tragedy Should Be A Catalyst For Change

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Today’s post comes from guest author Edgar Romano from Pasternack Tilker Ziegler Walsh Stanton & Romano.

This has been a tragic week in our country. Monday’s Boston Marathon attack was followed by Wednesday’s massive blast at the West Fertilizer Company in Texas. As I write, the final death toll from the West Fertilizer Co. fire has yet to be determined. It is currently unknown what caused the blast and it is unknown whether the casualties included employees, first responders or citizens. However as we look at this tragedy we should be reminded that this spring marks the 102nd anniversary of the Triangle Shirtwaist Fire. That terrible event which took place on March 26, 1911 was followed by a swift and aggressive response by workers and labor activists. Their response led to the establishment of many of the protective organizations American workers now rely on, including the workers’ compensation system, the American Society of Safety Engineers, and the U.S. Department of Labor.

As with the Triangle fire, this should be a time for action as well as reflection. April 28th is Workers’ Memorial Day, a great opportunity to talk about how to establish better workplace safety so that no tragedies like the Triangle factory or West Fertilizer explosion – if caused by unsafe work conditions – occur again. Whatever the cause, let this tragic week be a wake up call to us to prevent more people from dying needlessly in the future,

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Bullying Not Limited to Workplace or Playground

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Today’s post comes from guest author Jon Rehm from Rehm, Bennett & Moore.

I recently received an inquiry from a student about working through the challenges caused and exacerbated by her bullying professor, because unfortunately, bullying has never been limited to work or a school filled with children. This is my response.

Sorry to hear about your professor making your life miserable. I have two pieces of advice for dealing with him. Here is how you can proceed to protect your rights:

  1. Under Title IX, you likely have the right to take medical leave from school to deal with your psychiatric condition. This should allow you to stay in the program and preserve your ability to get your degree. This will at least give you time to treat your mental health condition so you can deal with your bullying professor. Here’s a blog post that touches on that portion of your concern. 
  2. Once you get your mental health together, I would attempt to band together with other students who have been bullied by the professor and bring it up with the administration. I find there is more power for people when they band together rather when the face their employer, or in your case school administration, as individuals. This blog post shows some information about what to do when you’re dealing with a bully. 

I sent you these blog posts so you can understand the underlying legal principles here. As a student you are protected against discrimination by Title IX. This includes protection from harassment that is motivated by sex, race, religion, etc. However this professor seems to be an equal-opportunity jerk, which means his conduct is not against the law. However, you likely have some protections based on disability as well under Title IX. Your mental-health condition is a disability, so at the very least the school will probably have to grant you some leave to take care of your mental-health condition.

The weakness with asking for accommodations from a bullying boss based on a mental-health condition is that administrators and courts tend to view people with mental-health conditions as overly sensitive and unreasonable.

If you can get a few people to join with you in standing up to a bully, you are in a stronger position. It sounds like you would have some people who would be willing to join with you. You are in a stronger position than you think. Your major is an industry that is competitive where the pay is fairly low. There is no shortage of people who are qualified to be teachers within you major. I’m sure they could hire someone with a basic sense of decency.

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Compensation for Secondary Smoke Inhalation

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Today’s post comes from guest author Charlie Domer from The Domer Law Firm.

Recent article indicates some public health departments are offering incentives to create smoke-free policies in buildings. The idea is to reduce the exposure to second-hand smoke.

While substantial strides have been made in many states to provide both smoke-free public places and smoke-free workplaces, the dangers of secondary smoke inhalation remain. Continue reading »

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The SMART Act and Workers’ Compensation

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Today’s post comes from guest author Leila A. Early from The Jernigan Law Firm.

            Medicare should not pay medical bills that are the primary responsibility of a third party.  When they do, they want to be reimbursed, and all parties understand that concept, but the problem is the lengthy delays and lack of due process. The SMART Act, which was signed into law by President Obama on January 10, 2013, amends and reforms the Medicare Secondary Payer Act to improve the reimbursement process. It is located in Title II of H.R. 1845 and entitled “Strengthening Medicare Secondary Payer Rules.”

            Section 201 requires CMS to maintain a secure web portal with access to claims and reimbursement information. Payments for care made by CMS must be loaded onto the portal within 15 days of the payment being made. The portal must also provide supplier or provider names, diagnosis codes, dates or service, and conditional payment amounts. Moreover, the portal must accurately identify that a claim or payment is related to a potential settlement, judgment or award. After several steps, the parties may download a final conditional payment amount from the website. If there is a dispute over the conditional payment amount, CMS must respond/resolve the dispute within 11 days or the proposed resolution by the claimant/applicable plan will be deemed accepted. In terms of appeals, CMS must draft regulations that give applicable insurance plans limited appeal rights to challenge final conditional payment amounts. This process will go into effect around April of 2013. 

            Section 202 states that by November 15th of each year (beginning in 2014), CMS is required to calculate and publish a threshold for liability claims. If an amount owed is under that threshold amount, CMS is barred from seeking repayment.  Section 205 states the statute of limitations for conditional payment recovery by CMS is three years after the receipt of notice of a settlement, judgment, award, or other payment made.

            The SMART Act applies to workers’ compensation cases, so it is important to understand the law and how it will be applied in the future. Read it and follow its implementation closely.

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