This means that having the right doctor can be the difference between getting your medical bills and wage loss paid or getting your claim denied.

Such an important decision should not be left up to your employer. Employers will try to protect themselves from workers’ compensation claims to avoid increased insurance premiums. A successful workers’ compensation claim may also draw attention to unsafe work environments, which could result in workplace safety penalties. Ultimately, your employer has many reasons to try to protect the company and will not have your best interest at heart when choosing a doctor.

Know Your Right to Choose

Under Minnesota law, employees have the right to choose their physician if they are not part of a managed care plan. We often see employers that tell their employees that they have to go to their doctor or else they don’t get benefits. This is simply incorrect.

There is nothing more personal and important than your physical health, and your employer should not be given the right to make these very personal decisions. Almost as important as your physical health is your financial health. Most of us cannot afford to get stuck with thousands of dollars in medical bills and weeks of lost wages. Without the right doctor, both your physical and financial health could be devastated. If your employer is pressuring you to see a doctor they selected, you are will be far better off choosing your own doctor.

However, before you make a change to a new doctor, you must first make sure that changing your primary physician complies with the workers’ compensation rules.

Rules and 60-Day Deadline

Minnesota workers’ compensation requires employees follow the workers’ compensation rules. Under these rules, a doctor becomes your “primary” doctor after you have seen him or her only twice. Once you have established a primary doctor, you must be careful to properly follow the administrative rules when changing doctors.

If you change doctor without following these rules, your employer may no longer have to pay for your medical bills! Here are the basics of what you need to know and additional resources:

Employees can change their primary physician one time within 60 days from starting their medical treatment. However, after 60 days, it is much harder to change physicians, and even impossible in some circumstances. For example, the rules require employees to get employer, insurer, or judge approval to change their physician after 60 days. To learn more about these rules, see Minnesota Administrative Rule 5221.0430.

If your employer or their insurer is pushing you to a doctor or clinic of their choosing, we highly suggest immediately seeking the advice of an attorney for two reasons. First of all, as mentioned, there is a time component involved here and an attorney can assess where you stand and possibly get a doctor change approved even after the deadline. Secondly, in our experience an employer recommended doctor is a major red flag. Employers and work comp insurance companies who try to influence medical care tend to be the kind of companies who will do everything they can to deny you the benefits you have coming to you.  Therefore, it’s better to have someone on your side as early as possible.

For those of you unfamiliar with the Tough Mudder, participants have to traverse a 10-12 mile course littered with obstacles en route to the finish line. The original course was designed by British Special Forces as a way of training combatants to overcome both physical and mental obstacles. Aside from being physically demanding, the course also asks runners to conquer some personal fears, like:

• Heights
• Fire
• Water
• Electrical Shock

The run certainly isn’t for the faint of heart. On average, only 78 percent of individuals who start the race cross the finish line, so we were certainly excited to see Ben and Katie cross the finish line with smiles on their faces. So not only are the attorneys at Heimerl & Lammers Super Lawyers and Rising Stars, but you can also call them tough mudders! Check out a few photos from the race below!

Congratulations to both Ben and Katie. You made us all proud!

Kaarin S. Nelson is an attorney at Halunen & Associates. She represents employees facing workers’ compensation retaliation and other employment related issues. Below, she discusses how employees can face scrutiny after filing a claim.

You’re a good employee and you work hard at your job. You go in everyday and tuck yourself under a customer’s car, drive to a client’s office or hospital, or climb the ladder to a customer’s roof. One day, a day that otherwise starts out like all the others, you injure yourself while you are at work.  This injury could be a minor slip and fall, or a more serious accident that requires surgery and possibly years of rehabilitation. You go to the doctor, you miss some work, and you may have some work restrictions. As is your right, you apply for workers’ compensation.

Sometime after you apply for work comp, your employer starts treating you differently. It might be as elusive as making you feel less valuable than other co-workers. Possibly your employer becomes critical of your work in ways that didn’t happen before your request for workers’ compensation, amounting to some form of performance improvement plan. Or maybe it is as bad as humiliating comments about your value as an employee (I have heard comments as shocking as “we should take you out back and shoot you” and “if you hadn’t applied for workers’ compensation none of this would have happened”). This humiliating treatment may lead to a demotion, termination, or some other form of adversity.

If you are being treated differently after you applied for workers compensation, you may be experiencing retaliation because of that claim, and the law protects you from that.  There are steps you can take to make sure this law works for you.  You can call an attorney who works with employees experiencing retaliation because of a workers compensation claim. You can also make a report to your employer laying out your concerns of retaliation. This report should protect you against further retaliation, or, at the very least, it may strengthen your legal claim if your employer turns a blind eye to your report.

Recovering from any injury can be stressful and daunting. Having work restrictions can be scary and may force you to address concerns about your future earning potential. Your doctor will probably tell you to focus on your recovery, and you should, but you might also have viable legal recourse that you should be aware of and could help protect you and your family.

However, it is important to understand that whether you are an employee or independent contractor may not be as clear cut as your employer wants you to believe. Even if your employer calls you an “independent contractor,” the court has the power to decide that in reality you were an employee. This is possible because the court examines the actual conduct of the parties, not arbitrary titles. Generally, when deciding whether a worker is an employee or independent contractor, the court will look at the actual conduct of the parties in the following five categories:

It is important that this form be filled out to document that the injury took place. It should be filled out as close as possible to the actual injury date. If this form is not filled out it could make proving your claim more difficult in the future.

Document as much as you can about the injury as soon as possible, especially if you can’t fill out the FROI the same day you get injured. Grab a pen and paper and write down as much as you can remember. Some key pieces of information to record include:

• When and where the injury occurred (Day, Time, Location).
• Where the injury occurred on your body.
• How the injury occurred.
• Any witnesses to the accident.
• Any pain or issues you are experiencing after the accident.

You’ll be able to recall key details more accurately if you write them down shortly after the incident, and odds are you’ll have access to a piece of paper or the notepad in your cell phone before getting your hands on a FROI form. If you have any questions about filling out the FROI, don’t hesitate to reach out to an attorney.

You should note how the exam was conducted, such as where the doctor touched you, if the doctor made you lift your legs or touch your toes, or if the injured area was rotated. How long the exam took is also an important detail.

The doctor’s opinion is going to have an impact on your benefits. For instance, the doctor may state that your injury was not work-related. This can give the insurance company a reason to discontinue benefits. The doctor may also find that you have reached Maximum Medical Improvement (MMI), which means you won’t get any better than you are now. This means any temporary benefits can be discontinued. If the doctor states that the treatment you received in the past was not necessary, the insurance company may try to deny payment of your medical bills.

Most people get upset when they get the results of the exam. This is an understandable reaction, but remember that this is only one person’s opinion and you don’t have to follow it.

Carl Crosby Lehmann posted the following Q&A on BusinessManagementDaily.com. Workers’ Compensation Attorney Mike Lammers builds upon Mr. Lehmann’s answer by sharing his own insights into Minnesota workers’ compensation law.

Q. We have an employee who has been out with a work-related back injury for more than six months. We have not received any indication from her doctor about when she will be able to return. Must we keep her on workers’ compensation leave status indefinitely? Do we have to indefinitely hold open her job?

The short answer is “no.” Minnesota workers’ compensation law does not require indefinite leave for an employee who has suffered a work injury.

An employee on an indefinite workers’ compensation leave who has exhausted any FMLA leave may be lawfully terminated and has no absolute right to reinstatement to her current position at the time she is deemed medically able to return to work.

That being said, workers’ compensation law requires employers to undertake a fact-based analysis similar to the ADA’s reasonable accommodation analysis. When an employer has been provided a definite return-to-work date, even one that is fairly distant, it must analyze whether it can accommodate the employee with an extended leave of absence and keeping her position open or whether this would be an undue hardship.

Minnesota courts have generally held that it is not reasonable to accommodate an indefinite, lengthy leave when the employee cannot establish that she will ever be able to return to work or when that might occur. If terminated, however, such an em­­ployee should be free to reapply for a job once she is physically able to re­­turn to work (with or without a reasonable accommodation).

Beware possible legal exposure for unlawful retaliation against an employee for asserting workers’ comp rights. Make sure you are acting consistently with other leave of absence situations, including leaves necessitated for reasons other than workers’ compensation covered injuries.

Mike Lammers Chimes In

Mr. Lehman’s advice here is good. While employers aren’t legally required to hold an injured worker’s job open indefinitely, they need to act reasonably wherever possible. The author is right to point out that employers should be aware of possible exposure to legal action for retaliatory discharge if they aren’t very careful when eliminating the job of an injured worker.

I would add that the employer should pay specific attention to the timing of events. We sue employers who illegally fire people that have a workers’ compensation claim. One of the very first things we look at when evaluating a case is the temporal relationship between the termination and the employee’s injury or diagnosis/prognosis change. In other words, how much time has passed between a work comp “event” and the firing? If the employer decides to fire someone soon after they get hurt or file a work comp claim (or have a medical procedure, a status change, etc.) a good argument might be made that they are retaliating against the injured worker.

The law is attempting to ensure fairness. On the one hand, a business can’t be expected to hold a position open forever without knowing if it will ever be filled. On the other hand, an employee shouldn’t be punished for getting hurt on the job.

Related source: Business Management Daily

Temporary workers in Minnesota are at a much higher risk for injury than permanent workers, according to a study of more than 3.5 million injury claims.

The multi-state study conducted by ProPublica sought to better understand how temporary worker injuries compared to those of permanent workers in respect to incident type, rate and severity. The study, which included injury claims from Minnesota, California, Florida, Massachusetts and Oregon, uncovered:

• Temp workers were significantly more likely to suffer a “caught in” or “struck by” injury.

• Temp workers in Minnesota were 72 percent more likely to be injured on the job than their full-time, permanent counterparts.

• Permanent workers in California were half as likely to suffer heat exhaustion than temporary workers.

• Temporary workers in Minnesota were more than three times as likely to be injured by chemicals than permanent workers.

With data like this, it’s no surprise that we regularly hear tragic stories like to one of Lawrence Daquan “Day” Davis, a 21-year-old temporary worker who was killed on the first day of his job when he was accidently crushed by a pallet loader. The Occupational Safety and Health Administration later fined Davis’ company $192,000 for failing to properly train its temporary workers and advise them on proper safety techniques.

Three Main Reasons

The above study and the story about Davis are consistent with what we see in our practice when it comes to temporary worker injuries. In these cases, we usually see three independent factors that amount to the so-called “perfect storm” of temp worker injury. They are:

Lack of Training – Because of lack of training and the physical nature of temporary work, people in these environments tend to get injured more than their permanent-status counterparts.

Economy – The “jobless” economic recovery we’re going through means that more and more people are accepting temporary or part-time work just to get their foot in the door. With more individuals accepting temp positions, it stands to reason that temporary worker injury rates will rise.

Reporting Issues – Finally, work injuries suffered by workers in a temporary role often go unreported because of ignorance of the law, fear or losing out on work, or blame shifting by the temp agency or the employer.

The end result is a large population of workers who will be unable to rejoin the workforce and whose healthcare will have to be paid for by the taxpayers.

Related source: ProPublica

The Minnesota Occupational Safety and Health Administration recently announced that serious injuries from falls have risen in the past few years, and the number of citations issued to companies who fail to protect workers has more than doubled since 2011.

Although deaths from workplace falls have remained constant over the last five years, MNOSHA said serious injuries from falls doubled in 2012. They attempted to remedy the problem in 2013 by coming down harder on companies who failed to comply with workplace safety regulations. The administration issued 438 fall protection citations to companies in 2013, a huge spike from 2011 when only 173 tickets were issued.

“Typically, fall protection [equipment] is easily available. You can get it for less than $100,’’ said James Krueger, director of MNOSHA. “A majority of companies want to comply and do that routinely to keep their employees safe,” he added.

Three-Step Approach

Protecting workers from falls at work is a three-step approach. In order to best prevent serious and fatal fall injuries:

• Employers must purchase and install the necessary safety equipment.

• Employers must adequately train employees to use the equipment and gear.

• Employees must use the equipment when on the job.

MNOSHA is doing what it can to ensure businesses adhere to safety equipment and training policies, but even then accidents still occur. Terry Hukreide, an employee of Adolfson and Peterson Construction, said overconfidence and the thrill of risk could keep employees from following proper safety procedures.

“It’s an inherent human trait that we take chances,” Hukriede said. “Sometimes a worker says, ‘I only have to go out there for one second, and I’m not going to fall.’ But that’s the guy who ends up falling.”

Worker’s compensation attorney Ben Heimerl said MNOSHA citations aren’t always enough, and injured workers need to hold companies accountable.

“Many people find the idea of suing people distasteful, however, the best way to get companies to take safety seriously is to make it expensive when they don’t. When you’re injured at work, the only remedy is the workers compensation system. Minnesota workers’ compensation is not as lucrative as the insurance companies would like you to believe, but it does provide some very good benefits and its main goal is to get people healthy and back to work,” said Heimerl. “If someone other than your employer is at fault for the fall, there may be a claim against that company or individual as well.”

Related source: Star-Tribune

Insurance Business of America 

Here are the 10 “red flags” according to Insurance Business of America. Mike’s response to each item is below the italicized description.

1. Monday morning reports – The alleged injury occurs first thing on Monday morning, or the injury occurs late on Friday afternoon but is not reported until Monday.

Wow. This really sets the tone for the article: nonsensical and cynical. The article doesn’t begin to explain why a Monday morning injury is suspicious – probably because they can’t. As far as the implication that a Friday afternoon injury not reported until Monday is suspicious or unusual, that too is just plain cynical. There are all kinds of common sense reasons an injury isn’t reported immediately.

2. Employment change – The reported accident occurs immediately before or after a strike, job termination, layoff, end of a big project, or at the conclusion of seasonal work.

Before OR after ANY of those events? Could the author be any less specific? In today’s economy, people have employment changes all the time. If employers and insurers are going to be suspicious of every person before and after a job change, there won’t be anyone left to trust!

3. Suspicious providers – An employee’s medical providers or legal consultants have a history of handling suspicious claims, or the same doctors and lawyers are used by groups of claimants.

This is a nice piece of circular logic:  How do you know if there is a suspicious claim? If they go to a suspicious doctor. How do you know if it is a suspicious doctor? If they handle suspicious claims, of course. Rinse and repeat.

4. No witnesses – There are no witnesses to the accident and the employee’s own description does not logically support the cause of the injury.

I don’t know why the focus here is on witnesses. People get legitimately hurt at work without witnesses often. Think about your own job. Is someone watching you all the time? Just because no one witnesses a work injury doesn’t mean the injured person is committing fraud. The second part of this “red flag” would make more sense: if the employee’s account of what happened just doesn’t sound right, it’s probably a good reason for a second look.

5. Conflicting descriptions – The employee’s description of the accident conflicts with the medical history or First Report of Injury.

This might seem like a good way to sniff out fraud, but I think it is a red herring. Medical histories are complicated. Medical records are tough to read. Unless the employer happens to be a hospital, it is probably best to leave the diagnosis and prognosis to the doctors.

6. History of claims – The claimant has a history of a number of suspicious or litigated claims.

Again, self-serving and circular. If the employer uses this list to determine a claim is suspicious, then almost EVERY claim would be suspicious. At the end of the day, what they are saying here is: If the employee has had a previous work injury, then they are suspicious.

7. Treatment is refused – The claimant refuses a diagnostic procedure to confirm the nature or extent of an injury.

This is pure fantasy. Employees don’t refuse diagnostic procedures. They just don’t. The only people who refuse diagnostic procedures in a work comp setting are insurance companies who don’t want to pay for them.

8. Late reporting – The employee delays reporting the claim without a reasonable explanation.

The key word here is “reasonable”. Late notice by itself doesn’t make an injury suspicious. As the link we provided above explains, there are a lot of good reasons people don’t report their work injury right away – they’re afraid of losing their job, they don’t realize that the injury falls under work comp, they think the injury might resolve on its own, etc.

9. Claimant is hard to reach – The allegedly disabled claimant is hard to reach at home.

This one is too dumb to comment on.

10. History of Changes – The claimant has a history of frequently changing physicians, changing addresses and numerous past employment changes. Experience shows that when two or more of these factors are present in a workers’ compensation claim, there is a chance the claim may be fraudulent. Remember though, these are simply indicators. Many perfectly legitimate claims are filed on Mondays—and some accidents have no witnesses.

This convenient catch-all really encourages employer paranoia, and should also trouble any employee who has ever changed doctors, jobs or addresses. Two out of three and you make their list. At least the author acknowledges that these are only “indicators” and seems to recognize that there is such a thing as a legitimate claim.

Ben Heimerl Chimes In

As Mike points out, each “Red Flag” raised by this article could have several perfectly reasonable explanations. Unfortunately, insurance companies are training their employees to focus in on one, negative, remote possibility.

Fraud is a serious accusation and should be taken as such. In my experience it is extremely rare. In fact, we’ve never had a client accused of workers compensation fraud. Think about it – in order for someone to commit workers’ compensation insurance fraud they would have to convince their doctor, their employer, their case manager, perhaps a physical therapist, an attorney, and eventually even a judge that they are injured and that the injury arose at work. Or, alternatively, all those people would have to be in on the con. Then, while they are waiting for the big pay day (a whopping 66 percent of what they would have made had they kept working), they will have to fight the insurance company, go months without a paycheck, incur massive debt due to medical bills, ruin their credit score, and possibly get evicted or divorced from the stress of no income. If such an individual was willing to endure all of that, he or she is probably smart enough to have already figured out not to report his injury first thing Monday morning.

All this article is doing is making it more likely that honest injured workers won’t get the benefits they deserve.

Related source: Insurance Business of America

We can’t stress how important it is to report an injury as soon as it occurs, but we understand why some people are hesitant to do it. Below, you can see some of the common reasons why people fail to report their work injury in a timely manner.

1. They think the injury isn’t a big deal – Minnesotans are tough. Many of us have bills to pay and families to provide for. The prospect of missing out on a paycheck because of an injury can seem scary, so they trudge on ahead, sacrificing their physical comfort to provide for their family.

Also, maybe the individual thinks it’s only a minor injury and it will heal overnight or over the weekend. They don’t want to pester their manager or boss over an injury if it heals in just a few days. Sometimes a person’s pride gets in the way of reporting the injury, or they are simply overly optimistic that the injury is “no big deal.” They want to be seen as a great employee, but they should remember that even great employees suffer injuries on the job.

2. It’s a Gillette injury – A Gillette injury, also known as cumulative trauma, occurs when a person is subjected to repeated stress over time. For example, a warehouse worker who routinely lifts heavy objects might leave work with a sore back. His pain may alleviate each night, but if he holds the job for 20 years he might slowly be doing damage to the nerves and vertebrae in his back. Maybe he goes home with what he believes is routine soreness, but the pain lingers for a few days.  It might take the worker a week or so to realize that he needs medical attention, and that he should file a workers’ compensation claim.

3. They are afraid of losing their job – Unfortunately, this reason is far too common in the workplace. An employer cannot fire an employee simply because they got injured on the job. Some people think they might get too far behind on their duties if they are gone for too long, or they fear being replaced by a new hire.

The prospect of losing their job, their source of income, is a big reason why people neglect to file a workers’ compensation claim. The economy is tough, and trying to find a new job while recovering from an injury would be difficult. Also, many employees like their job. Not only are they afraid they’ll be fired for missing work with an injury, but they fear the stigma of being the employee with the work comp claim. You shouldn’t feel embarrassed or scared to collect benefits you’re entitled to receive.

4. They don’t know it is a compensable injury – Some people believe that they are only eligible for workers’ compensation if they suffer their injury while on the clock, but that isn’t always true. There are some exceptions, for example, if you are a traveling employee (your work requires you to travel, or go between several locations) you may be covered from the time you leave your house to the time you get home. You are also covered for ingress and egress of your employer’s premises, which would include injuries that take place in the parking lot, getting out of your car, or walking into the building.

Other times people don’t believe the injury is compensable because it was their fault. As long as they weren’t acting negligently or recklessly, they can be compensated, even if their mistake led to the injury.

Lastly, some workers believe the injury was caused by something other than work. If you aggravate a previous injury at work, even if the initial injury occurred outside of the workplace, you may still be eligible for compensation.

5. They don’t even realize they are hurt – Sometimes pain doesn’t set in until much later. For example, symptoms of a concussion can linger for years, even if a person doesn’t feel pain right away. If you begin to notice symptoms likely caused by a previous injury, you seriously consider filing for workers’ compensation.

Analysts concluded that August was the most dangerous month for workers by reviewing Travelers’ insurance claim data from the pasty two years. Although the data was limited to claims filed in Texas, researchers found that work injuries like sprains, strains, cuts and bruises were more likely to occur in August than in any other month.

“Employees are the backbone of any successful company, so it is important that employers take steps to keep them healthy and safe at work,” said Kim Bittle, Regional Vice President of Travelers.

Ben Heimerl, a workers’ compensation attorney in Minneapolis, Minnesota, said the claims data reveals how important it is for businesses to be insured.

“In Minnesota, businesses are required by law to carry workers compensation insurance. If a company is uninsured, they can be liable for up to triple the damages payable to the state,” said Heimerl. “If you are injured and you don’t think your employer carries workers compensation insurance, don’t worry. Minnesota has a Special Compensation Fund to cover injured workers of employers who don’t carry insurance. The employee should not have to pay for the employer’s mistake.

Deadly August Driving

Motorists are also subjected to heightened dangers during the month of August. According to AAA Mid-Atlantic, four of the 10 most dangerous days for driving are in August.

Thankfully, all four days have come and gone. The four dangerous days are August 3, 4, 6 and 12.

Although four of the 10 most dangerous driving days are in August, the month only has one day is in the top five. You can see the five most dangerous driving days below:

1. July 3
2. July 4
3. December 23
4. August 3
5. January 1

Related sources: Travelers, WJLA.com

Both OSHA and NAWC want to educate and reinforce techniques for dealing with musculoskeletal and sanitation hazards, as well any issues that may arise from ill-fitting protective equipment like hardhats and safety glasses.

“Safety and health problems in construction create barriers to women entering and remaining in this field,” said Dr. David Michaels, OSHA’s Assistant Secretary of Labor. “Through this alliance, we will work together to forge innovative solutions to improve the safety, health and working conditions for women in the construction trades and retain female workers during a critical time of job shortages in this industry.”

The groups signed a two-year agreement to develop a variety of strategies aimed at keeping female construction workers safe while on the job. They plan to implement the services through:

• Training programs;
• Fact sheets; and
• Outreach resources.

In addition to the services, OSHA has launched a new web page titled “Women in Construction” which offers more educational and safety resources. You can learn more about the agreement by visiting the Women in Construction website.

Attorney Mike Lammers comments

You might assume that injuries don’t discriminate by gender, but the studies show that statistically, women face different types of risk than men.  For instance, because of the fact that more women work as “flaggers” in road construction, they are far more likely to be injured in a motor vehicle accident on the job.

It is good to see that OSHA is addressing workplace injuries in such a thorough manner.

For the study, researchers examined work accidents and injury data provided by the U.S. Department of Labor’s Bureau of Labor Statistics. In order to determine which states put workers at the greatest risk of serious injury, researchers examined how many accidents were so severe they caused the employee to switch jobs or experience major changes in their responsibilities. You can see the results below:

The Most Dangerous States For Workers

1. Maine (1.4 severe injuries or illnesses per 100 workers)
2. Indiana (1.1)
3. California (1.0)
4. Nevada, New Mexico, Oklahoma, Kansas, Wisconsin, Alabama, Connecticut, (0.9)

The Least-Dangerous States For Workers

1. New York (0.1)
2. Hawaii (0.2)
3. Louisiana (0.3)
4. Alaska, Wyoming, West Virginia, Delaware, Massachusetts (0.4)

Researchers couldn’t pinpoint the reason why some states were more dangerous than others. Some argued that Maine employs more manual laborers than New York, but a look at the data reveals that both states same the same percentage of white collar jobs (38%).

When researchers attempted to find correlations across between profession and location, they came across some confounding results. For example, serious injuries in the car and truck manufacturing ranged from an average of 1.1 cases in Tennessee to 3.5 cases per 100 workers in North Carolina. Similarly, nurses were nearly five times as likely to suffer a serious injury or illness in Maine than the national average.

Researchers ultimately concluded the differences could be credited to taxonomy and environment. Taxonomy is the way in which a state classifies an injury, and some environmental landscapes lend themselves to injury more so than others. Would you rather drive the Smokey Mountains in Tennessee, or the flat cornfields of Iowa?

The Most Dangerous Jobs

The insurance company Allsup also examined data to determine which industries were the most dangerous. The nationwide results may surprise you.

1. Amusement parks/arcades (3.2)
   2. Animal slaughtering/processing (3.1)
   3. Beverage manufacturing (2.7)
   4. Metal casting foundries (2.7)
   5. Nursing care facilities (2.6)

Related source: Time

1)   Which type of work-related injury resulted in the most fatalities in 2012?

2)   What is the most common type of work-related injury?

3) What of the following parts of the body represents the highest amount of work-comp claims?

4)   True or False. Men account for more than 2/3’s of the total number of injured workers?

5)   What percent of injured workers’ were younger than 25 years old?

6)   What industry reported the highest amount of work-related injuries?

7) What type of event results in the highest amount of work-related injuries?

8)   How many claims were filed in Minnesota in 2012?

9)   What percentage of injured worker’s had been at their job for less than a year at the time of their injury?

10)   What occupation had the most fatal injuries in 2012?

Answers: 1. B. 2. C. 3. B. 4. False. 5. D. 6. C. 7. A. 8. B. 9. B. 10. C.

According to a new study published on WebMD, researchers pooled data from 27 separate studies that included over 268,000 working adults. By looking cross-referencing questionnaire data with patient records, researchers concluded:

• People with sleep difficulties were roughly 60% more likely to suffer an injury at work than people who received an adequate amount of sleep.
• Individuals who had sleep apnea or took sleep medicines had the highest chance of suffering a work injury.
• Surprisingly, the risk of suffering a work injury related to poor sleep was less likely for individuals with labor-intensive jobs (such as industrial or construction workers) than the average collection of all workers.
• Overall, researchers estimate that 13 out of every 100 work injuries can be linked to poor sleep.

Researchers felt their evidence was strong enough to establish a direct correlation between sleep disorders and an increased likelihood of suffering a work injury. They added that their data did not include driving-related work injuries, which as we’ve documented in the past can be tricky situation in determining if a person is entitled to work-comp benefits. Had they included this data, researchers felt the rate of injury could have been even greater.

Workers’ Compensation Attorney Ben Heimerl comments

A person who suffers from sleep apnea or some other diagnosable sleep disorder may qualify as a disabled person under the Minnesota Human Rights Act. Sleep is a major life activity, and the inability to get sufficient sleep is a significant physical impairment that can adversely affect one’s ability to work.

A disabled person under the Minnesota Human Rights Act may be entitled to additional rights and protections within the workplace and, in the event of an injury, certain workers’ compensation benefits. If you suspect that you have a sleep disorder, it is important that you consult with your doctor.

Exhibit A

In October 2008, a nursing assistant was attending a mandatory work seminar at which she was required to pick up a paycheck. Guest at the seminar were expected to clock in for the seminar, and could not punch out until they had received their check. After the seminar had concluded but before she got in line to pick up her check, Ronna Woods stepped outside for a cigarette.

While walking towards a trashcan, Ms. Woods slipped and fell on the concrete pavement. She suffered a fractured left arm as a result of her fall. Shortly after the incident, Ms. Woods filed a workers’ compensation claim seeking medical and temporary total disability benefits. Her employer contested the claim, but a law judge ruled in favor of Ms. Woods. The Arkansas Workers’ Compensation Commission agreed with the judge’s findings, but an appeals court overruled the ruling, saying by taking a break, Ms. Woods was no longer directly or indirectly advancing her employer’s interest.

Ms. Woods decided to appeal the overturned claim to Arkansas Supreme Court.  The high court found that a reasonable person could surmise that Ms. Woods was, at a minimum, advancing her employer’s wishes, at least indirectly, by staying on the premise until she received her check.  The Arkansas Supreme Court re-instated the ruling made by the Workers’ Compensation Commission.

Exhibit B

An Oregon woman filed for workers’ compensation in 2012 after she suffered an injury in a parking lot that was used by the building’s employees.

According to the claim, Mrs. Frazer worked for a car rental company and had paid breaks. On one of her breaks, Mrs. Frazer decided to walk to a smoking hut located roughly 100 feet from the company’s main door. In order to get to the hut, employees would have to cross a parking lot. The car rental company did not own or manage the parking lot, but some of the parking spots were reserved for employees of the car rental company.

After finishing her cigarette, Mrs. Frazer began walking back towards the company’s main door. While she was walking, her shoe got stuck in a crack in the pavement. Mrs. Frazer fell to the pavement and injured her knee and ankle. A subsequent MRI revealed that Mrs. Frazer tore her lateral meniscus, and she needed surgery to address the problem.

Mrs. Frazer filed for workers’ compensation, but her employer’s claims representative denied the claim. However, the Workers’ Compensation Board did not find that Mrs. Frazer’s injury fell into the “coming and going rule”. The coming and going rule protects businesses from being liable for injuries that occur while a person is commuting to or from work (i.e. a car crash on your way home is normally not compensable, unless there are extenuating circumstances, like you are still on-call). The WCB found that Mrs. Frazer’s injury should not be subject to the clause, so she was awarded her claim.

Mrs. Frazer’s happiness was short-lived though, as the claim was soon brought in front of the Oregon Court of Appeals. The high court ruled that Mrs. Frazer’s injury did fall under the coming and going rule, even though the employee was only on a break. In their ruling, the Court of Appeals found no evidence that Mrs. Frazer stayed within 100 feet of her workplace at the time of the fall. They also stated that the employer’s control over the location she fell, in and of itself, was not enough to establish compensability.

Ben Heimerl comments

Employers are required to make safe both ingress and egress from your place of employment; break time should be no exception. Even if the employee was found to be “not working for the benefit of the employer” during the break, a safe reentrance into the premises is required.

In the other case, it would be interesting to know if this was the designated smoke area for the company or just a spot the employee chose. These cases are very fact specific and depend on things like the route the employee took, the hazards that they encountered, and the control the employer exercises both over the route and the employee.

The Good Samaritan doctrine allows for a person to be compensated for an injury if they are providing aid to someone in urgent need.  While “urgent need” may be loosely defined, the Appellate Court said it was reasonably foreseeable that an injury could occur if the vending machine malfunctioned.

Potat-OW Chip Claim

According to the claim, a man referred to only as Dwyer was working at Circuit City when he came upon a co-worker at the company-operated vending machine.  The co-worker had put money into the machine, but the bag of Fritos that was chosen was stuck on the clasp.

Dwyer attempted to dislodge the Fritos by tipping the vending machine forward.  After that attempt was unsuccessful, Dwyer tried to dislodge the bag by nudging the machine with his shoulder.  As he struck the machine, Dwyer felt an immediate pain in his hip and fell to the floor.  He was taken to a medical center where immediate surgery was preformed.

Awarding Damages

Dwyer sought damages for the surgery, recuperative period, and partial disability he suffered as a result of the injury. The Illinois Workers’ Compensation Commission originally ruled Dwyer’s injury was compensable under the personal comfort doctrine. They awarded Dwyer:

• 12 and 4/7^th’s weeks of temporary total disability benefits;
• $60,306.83 in medical benefits; and
• 35% loss of the use of his right leg, resulting in a total award of $74,107.74

In their decision, the IWCC ruled that Circuit City was liable because Dwyer’s actions were neither unusual nor outrageous.

Overruled, then Reversed

After Dwyer was awarded his benefits, the case was brought before the Circuit Court. The Circuit Court reversed the original decision, saying the personal comfort doctrine did not apply because Dwyer was not seeking his own “personal comfort” by trying to dislodge the bag.

Dwyer and his attorney appealed the reversal with the Appellate Court. Ultimately, the Appellate Court sided with Dwyer, but not for the reasons outlined in the original decision. The Appellate Court said Dwyer’s injury was compensable under the Good Samaritan doctrine. In their ruling, the court outlined a three-step process that they believe left Circuit City liable.  They ruled:

• The employer provided the vending machine for the convenience of its employees; and
• The machine was defective; and
• The defect created a need for action to dislodge the bag of Fritos.

Ben Heimerl comments

I’m not surprised the original court cited the personal comfort doctrine in their ruling. Under the PCD, a person can be compensated for an injury if it occurs during a short break, like a bathroom break, smoke break, or trip to the break room. These events do not take someone outside the scope of their employment and would be compensable. Following the logical steps that a person may take a break to get a snack from the vending machine, this leads me to believe it would be a compensable injury. I’m surprised the ruling was reversed, then reinstated, but the important thing is that an employee received the award for his on-the-clock injury.

The revision specifically changes how claims of post-traumatic stress-disorder are viewed under Minnesota law. PTSD was previously viewed as a disease that arose “out of and in the course of employment peculiar to the occupation in which the employee is engaged and due to causes in excess of the hazards of ordinary employment”.  What that meant was PTSD claims could be considered valid if the employee could prove that their disorder arose out of a physical injury. Now an employee may pursue a workers’ compensation claim if they can prove their PTSD arose from a certain “mental” injury.

PTSD has always been compensable under the state’s workers’ compensation laws if it was caused by a physical injury,” said Minnesota workers’ compensation attorney Ben Heimerl.  “What the legislative changes really added was the addition of a mental-mental injury, which means a mental stressor caused the PTSD to develop.”

Heimerl added that the revision opens a new door to workers’ compensation claims.

“These types of claims, until now, were not compensable,” said Heimerl.  “People who witness or experience a traumatic event may now be able to get the benefits they deserve.”

The revision will be a great addition for claimants who develop PTSD as a result of a non-physical work event.  To ensure people won’t attempt to game the system, the revision specifically outlined some work events that will not be compensable under the new law.  Mental disorders arising from any of the following events are not compensable”

• Disciplinary action
• Work evaluation
• Job transfer
• Layoff
• Demotion
• Promotion
• Termination
• Retirement
• Any action taken in ‘good faith’ by the employer

Heimerl said he was pleased that the measure passed, and believes other changes to the Act are on the horizon.

“This is not the only important change this year, but it’s a big one.”

To narrow their study, researchers focused on individuals who settled their claim outside of the courtroom. Their goal was “to ensure voluntary settlements are in the workers’ best interests.”

In order to complete their study, researchers mailed out a questionnaire to workers’ compensation claimants in Minnesota. The questionnaire asked respondents numerous questions in regards to their claim in order to determine:

1. Whether a claimant felt like they voluntarily settled their claim;
2. If they felt pressure to settle;
3. How informed they felt about their claim, dispute, or settlement;
4. Their overall experience with the work comp process.

Results

After analyzing the completed questionnaires, researchers were able to pinpoint the strengths and weaknesses of the system.  Below are some of the findings.

• Claimants said their attorney was the most frequent source of pressure to settle.
• Only half of the respondents who settled said they “substantially understood” the benefits involved in their claim, while one-third said they had “little or no understanding of their agreement.”
• Only 29 percent of individuals who settled said they would settle again if they had the chance to “do things over”.
• 19 percent said their attorney failed to explain they had the choice to go to a hearing.
• 21 percent of individuals who compromise-settled said they received “a fair compromise”, while 50 percent of claimants responded that the judge’s ruling was fair.

Although the data appears to show that many claimants feel they did not receive all the benefits they had hoped for, the study is also a prime example of the “grass is always greener on the other side” mentality.  Ben Heimerl, a workers’ compensation attorney, explains how the data can be manipulated.

“This study as read does not provide enough information to make a determination one way or another,” said Heimerl. “For example, half of the people who went to the hearing said they were happy with the results.  Were those the half that won their case? Did anyone lose their case and state they were happy with the results? If only half of the cases that go to court are successful, maybe settlement is a good idea in many cases. That also provides a logical reason why claimants said their attorney provided them with the most pressure to settle. A sure settlement is better than going to court and losing, so the attorney is using his or her professional knowledge to advise you in your best interests.

Heimerl added that although it appears many people would like a “do-over”, they could end up worse off by going to court and losing.

“Only 29 percent of people who settled said if they had a chance to do it over again, they would,” said Heimerl. “If they knew they only had a fifty-fifty chance of winning, would they settle? Is the money they received better than losing and getting nothing?

While it’s rarely this simplistic, imagine you were hurt at work and you filed a claim seeking damages in the amount of $5,000.  In lieu of going to court, the insurance company offers you $3,000 to settle your case out of court.  You could take the $3,000, or basically flip a coin for a chance at $5,000 or nothing.  Even if you win your case in court, the process will drag on longer, which could cost you more time and money.

Heimerl said this study had few worthwhile findings because attempted to lump each individual case into one simplified study.

“My point is not that these studies are not helpful, but they need to be put in context, and the context is not provided here.  Every case is unique and must be treated as such,” said Heimerl. “One important thing to take away form this study is that attorneys absolutely need to explain settlements to their clients, as well as the risks and rewards of going to trial.  Communication is the key to a successful outcome.

1. Assaults and Violent Acts – Coming in at #10 are assaults and violent acts.  This may be more common among police officers in law enforcement, but it can also happen in an office setting. Pranks of office politics can lead to pushing and shoving.
2. Repetitive motion – Ben Heimerl, a workers’ compensation attorney, said his firm has seen numerous “repetitive activity” injuries.  People tasked with constant bending of movements are prone to repetitive motion injuries.
3. Machinery Accidents – Accidents involving heavy machinery are common among industrial workers and farmers.  Construction workers are also tasked with dealing with heavy equipment on a daily basis, which exposes them to a greater potential for injury.
4. Highway Accidents – Although the coming-and-going rule usually absolves a company of liability if a person driving to or from work, employees in the transportation injury suffer traffic accident every day.  Truck and delivery drivers make up a high portion of these work comp claims.
5. Hitting an Object – This type of injury occurs across all sorts of industries.  These claims occur when a person accidently runs into a hard surface, like a wall, door, table or chair.
6. Object Strikes Person – In these cases, a moving object strikes a person.  This most commonly occurs when a person drops an object from a higher level and it strikes a co-worker.  These injuries are common in outdoor industries, like construction, roofing, or painting.
7. Bodily Reaction – Bodily reactions injuries are similar to slips and trips, but the person doesn’t fall to the ground during a bodily reaction accident.  These usually involve a person hurting their back or knees when they catch themselves after they trip or slip.
8. Falls to a lower level – Falls from a high height come in at #3 on the list, and oftentimes they result in some of the most devastating injuries.  These injuries occur when a person falls down a staircase, off a ladder, or from a roof.  Falls from great heights tend to involved broken bones.
9. Slips, Trips and Same-Level Falls – Falls from slipping on a wet floor are one of the most common injuries that result in a workers’ compensation claim.  These types of injuries are especially prevalent during the winter months when co-workers drag snow into the building on the bottom of their shoes.
10. Overexertion – Overexertion leads to more on-the-job injuries than any other ailment, mainly because it has a rather broad definition.  Injuries that occur while pulling, pushing, lifting, moving, carrying or throwing are all classified as overexertion injuries.  These types of injuries are common across all industries.

Ben Heimerl comments

Injuries come in all shapes and sizes.  It’s not just the construction workers that get injured.  The nursing field, assembly line workers, and individuals in the transportation industry all suffer workplace injuries.

We see many injuries caused by job stresses such as repetitive activity, heavy lifting, bending, kneeling, stooping, and crouching.  If your injury was cause by your work activities in any way, it probably falls under workers compensation.

While many will argue that The Price is Right is not a physically demanding game show, each contestant who appears on stage is given a chance to spin “the wheel”.  Contestants can ask host Drew Carey to spin the wheel for them (the wheel must make one complete rotation to be considered legitimate), but many contestants opt to spin the wheel for themselves.

Cathy Cashwell, a former mail carrier who was collecting workers’ compensation benefits because of an on-the-job shoulder injury, likely wishes she would have asked Carey to spin the wheel for her.  Cashwell spun the wheel twice despite claiming that her injury prevented her from lifting mail trays into trucks.

It’s not uncommon for companies to hire an outside agency to monitor an employee who suffers a work-related injury, but some people don’t even try to hide their fraud.  In addition to being seen by millions of people on The Price is Right, Cashwell was also seen zip-lining while on vacation and carrying groceries with both arms, according to the lawsuit levied against her.

In her claim, Cashwell said her work-injury also prevented her from being able to stand, sit, kneel, squat, climb, reach, bend or grasp.  Clearly she had more abilities than she submitted in her claim.

Work comp attorney, Ben Heimerl said people like Cashwell put a black eye on the entire claims process.

“Every day injured workers get denied benefits because insurance companies see fraud in every case,” said Heimerl.  “People like Cashwell only reinforce those fears and make it difficult for people with legitimate claims to get the benefits they deserve.”

Workers’ compensation fraud costs insurers roughly $30 billion each year.  Cashwell will be sentenced in September.

Related source:  The Toronto Sun

Workers’ compensation claims from former NFL players has been a hot button topic of late, and the majority of the talks have centered on California, where a person can file for benefits if they only worked part time in the state. Since California is home to three professional football franchises (San Diego, Oakland, San Francisco), it had been previously ruled that a player only needed to provide evidence that he suffered the injury while playing in California.  This month’s ruling places stricter regulations on where a player can file.

In their argument, the Chiefs and the National Football League Management Council argued that the ability to file in another state violates the contracts the players have with the organization. Despite arguments from the NFL Players’ Association, the lower court and now a federal judge has sided with the team.

Recently, many athletes from all over the United States have been seeking claims in California because of the state’s lose restrictions. Workers’ compensation attorney Ben Heimerl said the claims process in the NFL is complicated, but he’d like to see the league come to a unified agreement.

“Because NFL players work in many states, the choice of which state to file a claim in will often be an issue,” said Heimerl. “I think consistency is important, and forcing a player to file for benefits in the state they are primarily employed in might not be a bad idea.”

Heimerl said it will be interesting to see how the legal decision is interpreted. The NFL Players Association noted in its arguments that the choice of forum clauses are unenforceable under California law, federal labor law, and the U.S. Constitution.

It appears that the league is slowly moving towards a unified disability agreement, but the heart of the issue is what is enforceable under state and federal laws.  It appears likely that California will re-examine its workers’ compensation policy in the near future, but nothing is imminent.

Related source:  WCI 360

The study, conducted by researchers at the Centers for Disease Control and Prevention, found that the results were similar across a variety of job industries.  In their research, they concluded that construction workers were 21 percent more likely to suffer a work injury if they weren’t allowed to take paid sick leave, while health care workers saw an 18 percent increase.

Despite issuing some interesting findings, the study stopped short of examining why workers were more likely to be injured if they couldn’t take paid leave.  Although the study did not examine a correlation, it seems likely that some people find it harder to concentrate if they are working while battling an illness, which not only jeopardizes their safety, but the safety of their co-workers.  Dr. Abay Asfaw, who helped conduct the study, echoed those sentiments.

“If fewer people work while they are sick, this could lead to safer operations and fewer injuries in the workplace,” said Asfaw.

The study involved 38,000 people who took part in the National Health Interview Survey between 2005 and 2008 while working in the private sector.  The study only focused on employees in the private sector because many public sector employees do not get paid sick leave.

Workers’ Compensation Attorney Ben Heimerl comments

Studies like this are often skewed depending on who is interpreting them, but the results aren’t that surprising.  It makes logical sense that healthy employees will have fewer accidents than sick employees.  It probably holds true in almost any aspect in life. Healthy people should be able to function at higher mental and physical levels than their sick counterparts.

On a related note, this study brings up a good point in regards to taking time off after a work injury.  Oftentimes I hear of workers who use sick leave in the immediate days after an injury in hopes that they get better with a few days rest, and so as not to ‘ruffle any feathers’ within the company.

Unfortunately, this good deed does not go unpunished.  If the injury does not get better, the employee will be raked over the coals for not reporting it right away, and if they wait too long they could lose certain workers’ compensation benefits.

Related source:  Huffington Post

The case began when Tina Shannon was injured in a motor vehicle accident on her way home from work.  Shannon served as a surgical technician at Roane Medical Center, and on the day of the accident she was driving home from work after being called in to assist in an emergency medical situation.  She was still considered “on-call” when she was involved in the accident.

Tina filed for workers’ compensation benefits after the accident, but the court that heard her case denied her claim.  As a general rule, an employee is not considered to be acting within the scope of their employment when they are commuting to or from work, but the Appeals Panel took a closer look at the conditions of Tina’s employment when deciding the matter.

In their discussion, the Appeals Panel cited four factors that influenced their decision:

• Whether the employee is paid for time spent on call, either in hourly wage or increased salary.
• The extent of the restrictions imposed by the employer during on-call hours.
• The benefits the employer receives from the on-call system.
• The extent to which the on-call system requires additional travel, which in turn places the employee at greater risk than an ordinary commuter.

In their decision, the Appeals court ruled in favor of the employee in all four factors.  They said Tina received compensation for time on-call, had significant restrictions while on-call, the on-call system provided significant benefits for the employer, and the system required an increased amount of travel which exposed Tina to more risk. After weighing those factors, the Appeals Panel overturned the initial denial.

The case could have a significant impact on other employees who suffer an injury while on-call.  It will certainly affect future cases in Tennessee, and it may also have a national impact.

Attorney Ben Heimerl comments

Ordinarily, workers compensation does not cover your drive to and from work, but I believe the courts got it right in this case.

Employees who are on-call are technically still on the clock. When they are called in, they are often driving to work in a hurry, sometimes in the middle of the night, and oftentimes fatigued.
I believe being on-call puts the employee at an increased risk that the general population does not experience. That increased risk can lead to injuries and should be compensable.

Shaun Pauliuk, 35, pled guilty last week to defrauding the Workers’ Compensation Board of over $20,000.

Pauliuk initially filed the workers’ compensation claim in October 2008, citing an on-the-job back injury.  He said he hurt his back while lifting a heavy object out of a truck, and he collected lost wage benefits from November 2008 until June 2009.

The Saskatchewan Workers’ Compensation Board decided to look deeper into Pauliuk’s claim after they received information that he was participating in MMA fights.  Frank Impey, who prosecuted the case, said Pauliuk was very active while collecting his lost wage benefits.

“He was actually participating in rather physically strenuous events,” said Impey.

Officials tracked Pauliuk’s online presence and noticed that his MMA profile listed three fights that occurred during the time that he was collecting workers’ compensation benefits.  When asked about the fights, Pauliuk initially told officials that the board had already terminated his lost wage benefits, but the Workers’ Compensation Board records indicated that he was still receiving benefits at the time of the inquiry.

“(The WCB) clearly indicates it didn’t cut him off until it subsequently came to light he wasn’t as injured as he said he was,” Impey said.

Pauliuk received a two-year conditional sentence, three years of probation, a mandatory curfew from 10 pm to 6 am, and he must abstain from drugs and alcohol.  It was also stipulated that he must pay $250 a month towards the $20,000 he must pay back.  In addition to the defrauding charge, Pauliuk also pled guilty to check fraud, theft, and possession of a controlled substance in other unrelated incidents.

All things considered, Pauliuk may have been safer at work.  According to his MMA profile, he is 0-5 in his career.  His last match lasted 21 seconds before he was knocked out.

Attorney Ben Heimerl comments

I don’t believe the prevalence of fraud is as rampant as the insurance companies believe, but nonetheless, it certainly does exist.

People like this have created a world where insurance companies deny the claims until the insured can prove that they are entitled to the benefits, when they should be paying the benefits which they received premiums to provide, and denying only if they have proof of fraud.

It appears that the “innocent until proven guilty” method is just bad for business.

Related source:  Leader Post

Prior to its 1983 amendment, the Workers Compensation Act generally favored the injured employee.  An injured party’s common-law rights were retained unless the Act clearly modified those rights.  In 1983, the Act was amended to be applied on an “even-handed basis”, which ensured neither party received preferential treatment. This standard remains in effect today.  Employers should not mistake the more employer-friendly standard as an opportunity to skirt or circumvent the law.

The Workers Compensation Act in Minnesota

In Minnesota, the act requires all employers, except the state and municipalities, to carry workers’ compensation insurance, unless the employer qualifies for self-insurance (this is often referred to as mandatory coverage).

• Employees are generally defined as persons performing services for another for hire, including minors and noncitizens.
• An employer is generally defined as an individual or business that hires an individual to perform services.

The Act provides multiple exceptions to the mandatory coverage rule. However, these exceptions are only applicable in certain circumstances.

Exception for Businesses Without Employees

Some business entities have no employees and are not employers. Thus, these entities have no one to insure. Partners in a business or farm operation may be exempt if every employee is a partner or qualified relative.

Sole proprietorships are non-incorporated businesses owned by one person. If the sole proprietorship has no employees, the business does not need to comply with the act. That said, entrepreneurs are warned not to view sole proprietorships as a “free pass” from regulations.

A sole proprietorship is a business entity that fails to provide the owner with any liability protection. Entrepreneurs should avoid sole proprietorships at all costs. In addition, managers or members of limited liability companies and executive officers of closely held corporations may be excluded from the workers’ compensation requirement if certain requirements are met.

Workers’ Compensation Insurance

Workers’ compensation insurance may be purchased through an insurance agent or directly from an insurance company.  Minnesota has several thousand licensed insurance agents who sell workers’ compensation insurance, so you have plenty of options to choose from.  In Minnesota, work comp insurance is sold through open competition, which means insurance companies establish their rates and compete for business.  The workers’ compensation polices provide coverage mandated by state law. Thus, only price, quality of service, and customer service varies and employers could have significant savings by receiving multiple price quotes for the insurance.

Workers’ Compensation insurance provides compensation to employees who suffer a work-related injury or disease.  Compensation includes partial wage replacement and full payment of medical and vocational rehabilitation costs. In case of death, workers’ compensation benefits are paid to the employee’s dependents. Workers’ compensation insurance companies and self-insured employers pay these benefits and collect the premiums. The Minnesota workers’ compensation law was designed to standardize benefits, reduce litigation, and encourage early rehabilitation intervention, healthy employee and employer relationships, and return-to-work programs.

Workers Compensation Act Violations

If an employer fails to comply with the act the failure may result in any of the following:

• Litigation
• Civil fines and penalties
• Criminal charges

An employer suspected of violating the statute will be investigated by the Special Compensation Fund unit.  Even if an employee was not injured, an employer found in violation of the act may be fined by the Minnesota Department of Labor & Industry. An employer in violation of the act will be ordered to provide the necessary insurance coverage and refrain from employing any person, at any time, without issuing the proper insurance.  In addition, the employer may be penalized up to $1,000 per employee for each week the employee was not insured.

In addition, if an employer receives a commissioner’s order, the employer has ten days to comply or contest the order.  If an objection is not received by the commissioner by the deadline, the order will be considered final and the employer cannot appeal.  If, however, the employer contests the order, the dispute will be resolved by a workers’ compensation judge. The judge shall determine whether the fine and order is justified.  If the employer is found in breach of the act, the employer will be required to pay the order’s fines and may be penalized by additional fines if the uninsured people were employed while the case was in dispute.

In addition to costly fees and penalties, an employer found to have willfully and intentionally failed to comply with the act is guilty of a gross misdemeanor. In Minnesota, a gross misdemeanor is punishable with a fine up to $3,000.

Violation Remedies for Employees

If an employer has not purchased insurance coverage or failed to comply with self-insurance requirements and an employee suffers a compensable injury, the employee has multiple remedies. The injured employee may either pursue the employer in tort or request the Minnesota Special Compensation Fund pay the appropriate benefits.  After a request has been made, a judge will determine the employer’s liability and if the compensation fund is appropriate.  If the compensation benefit is awarded, the judge will order the employer to reimburse the Special Compensation Fund and will be penalized in the amount of 65 percent of the total cost of the benefits.

In Minnesota, a workers’ compensation claim is valid even if the employer goes out of business. Courts have routinely held that if an employer ceases to exist, the fault does not lie with the employee and it should not affect the employee or their dependents.

Andrew Hunstad is a law clerk at Thompson Hall Santi Cerny & Dooley and is graduating with honors from Thomas M. Cooley Law School in May 2013. 

Firms are turning to a variety of different forms of payments, from gift cards to exercise equipment, and in one case, a brand new fishing boat to settle workers’ compensation claims.

Greg Gitter, who runs California-based company that specializes in high exposure corporate workers’ compensation, said it’s important to think outside the box when trying to negotiate a claim settlement.  He said communicating with the employee can help each side find a happy-medium.

“Sit down with the person, have a conversation and find out what’s important,” said Mr. Gitter, whose firm specializes in negotiating workers’ compensation settlements.

Gitter spoke specifically about one case that involved a worker who was offered a $50,000 cash settlement.  The employee was hesitant to accept the offer, so Gitter asked the man where he saw himself down the road.  The man said he always wanted to spend his days fishing off the coast of Oregon.  Gitter used that information to adjust the settlement.  He offered the injured worker a $38,000 fishing boat, and $8,000.  He said the employee accepted the offer on the spot.

“It didn’t change the value of the case,” Mr. Gitter said. “It didn’t change anything about the case other than the manner that we approached the settlement.”

Gitter said associating value to a specific need or desire helps employees put the settlement value into perspective.  Those sentiments were echoed by Kathryn Tazic, who is the senior vice-president of Sedgwick Claims Management Services Inc.  Tazic said gift cards are becoming more popular because the economy has forced people to re-evaluate their expenditures.  She also said gift cards are popular because they can allow families to purchase things they need on a weekly basis.

“Depending on where or how the gift card is applied, it would (provide) the ability to meet everyday needs,” said Tazic. “So if it’s a grocer, they know that they can feed their family.”

Another trend growing in popularity is to provide hot tubs or gym memberships in lieu of settlement money that would be used for physical therapy.  Many clients are more likely to take a slightly reduced settlement if it allows them to be more comfortable.  Instead of going to settlement-mandated physical therapists, claimants can rehab at their favorite gym or in the comfort of their home.

“It depends on the individual, their psychological issues and… where they want to spend their money,” Tazic said.

If you would like to discuss your workers’ compensation options with an experienced legal team, give the attorneys at Heimerl and Lammers a call.

Related source:  WCI 360

Vasiliki Rallatos, who routinely shopped at the local thrift store, said she decided to submit a volunteer application after she learned that volunteers were subject to a 50 percent discount on all store items.  Rallatos, who was unemployed at the time, frequently shopped at the store and thought that the discount provided “a great incentive” to volunteer.

One day, while working at the store, Rallatos suffered an undisclosed injury.  The non-profit charity group initially provided authorized medical care.

Rallatos filed a workers’ compensation claim in hopes of recuperating medical expenses associated with her injury.  The workers’ compensation judge who heard her case did not agree with Rallatos’ contention that she should be considered for compensation.  The court’s decision can be seen below.

“Here we go back to the basic legal definition of consideration. Consideration is a benefit conferred as an inducement to a commitment. It can be commonly seen in the standard employment agreement whereby a worker works the job for which he is paid a wage by the employer.  There are many other forms of consideration; far too numerous to list here. The question for this court is: Was the 50 percent discount afforded to Petitioner an inducement to get her to commit her time and services to Respondent? The answer: No.”

“Many of these groups rely on donations and volunteers in order to make ends meet and survive. Given the importance of their work to society, the court is careful to consider imposing any further burdens on such entities. While the instant matter was decided solely on the facts presented in light of the cases and the Act, the issues noted are not peripheral to those organizations that are trying to do good works for the poor and disabled.”

“Therefore, in light of the analysis and review of the statute as set forth above, the court finds that Petitioner was not an employee of Respondent.”

Citing New Jersey S.A. 34:15-36, the judge ruled that volunteers cannot be considered an employee for the purpose of determining workers’ compensation claims.  The judge also stated that he was aware of the potential implications for state agencies if he had granted the claim.

“The court is also mindful of the broader implications for charitable organizations as a result of this decision,” the judge said.

Key testimony in the claim was supplied by the charity group’s human resources director, who said that volunteers are viewed separately from paid employees.  Volunteers are not eligible for monetary employee benefits, and the corporate office does not keep records of the volunteers at each individual store.

Related source:  Workers’ Compensation Institute

The Worker’s Compensation Appeal Tribunal rejected the claim of a teacher who injured his wrist while playing baseball with high school students, saying the game did not arise out of his employment duties.

The teacher, who was not named in the ruling, decided to participate in a “staff versus students” game during a lunch break.  Because he teaches social studies, not physical education, the appeals council said he was acting out of the scope of his employment.  Below if a portion of the tribunal’s ruling.

“The organization of, or participation in, recreational, exercise or sports activities or physical exercises is not normally considered to be part of a worker’s employment under the Act. There are, however, exceptional cases when such activities may be considered to have an employment connection. The obvious one is where the main job for which a worker is hired is to organize and participate in recreational activities. There may also be cases where, although the organization or participation in such activities is not the main function of the job, the circumstances are such that a particular activity can be said to be part of a worker’s employment.”

Despite mentioning that there are cases where participation in sports can lead to an acceptable workers’ compensation claim, the tribunal did not believe this situation was one of those circumstances.  According to the ruling, the tribunal listed four findings that led to the dismissal of the claim.  They found:

• The softball game was not part of the teacher’s scope of activities or duties.
• The softball game was not supervised by the employer
• The teacher was not under any direction or instruction to take part in the game by his employer
• His participation was strictly voluntary

Susan Lambert, president of the British Columbia Teachers’ Federation said the ruling was disappointing.  She said the teacher’s union stressed the importance of “teaching and work-life balance”, and in the ruling the teacher stated the game took place “just more or less for fun and to create harmonious school staff/student interaction.”

“[My attendance was] all part of a ‘good will’ thing between teachers and students,” the teacher said.

The BCTF plans to evaluate participation in similar recreational events during the next round of collective bargaining agreements.

Related source:  The Vancouver Sun

Mike Nofzinger’s legal battle began shortly after he attempted his 12^th pushup on his carpeted basement floor.  Nofzinger was preparing for a police fitness test that rewards officers who can complete the test with a lump-sum cash premium and retirement bonus.  One of the tests in the fitness challenge required officers to complete a certain number of pushups.

Nofzinger filed for workers’ compensation after suffering the shoulder injury.  The court initially ruled in Nofzinger’s favor, as they said the pushups where directly related to his employment, which made his participation “involuntary”.  He was awarded $12,500 in workers’ compensation, but the city of Appleton appealed the ruling.  Not only were they concerned about the large payout, but they feared the implications the ruling could have around the state.

“We think it’s a bad decision and it sets a precedent that is very far-reaching,” said Sandy Behnke, who works as Appleton’s human resources director. “If an employee runs to stay in shape and blows out a knee, it’s an open question whether they could file for worker’s comp.”

The city of Appleton decided to hire outside legal counsel to fight the original ruling, which cost the taxpayers an additional $17,477, but the Supreme Court decided not to hear the case.

Appleton Mayor Tim Hanna said the ruling would have state-wide ramifications, and it might lead to the elimination of similar fitness tests because companies don’t want to be exposed to lawsuits.

“It could make it tougher for the city to offer a fitness incentive in our health plan — we may need a stricter definition for outside injuries,” Hanna said. “I’m worried it could be extrapolated to almost any physical exercise injury. Could you file a claim if you were injured skiing? Where does it stop?”

Nofzinger said he was pleased that the case didn’t drag on any longer, and he reiterated that the fitness test not only ensures that officers are in top shape, but it also saves the department money in lowered insurance costs.

“Chief Dave Gorski negotiated this fitness plan in the 1980s,” Nofzinger said. “He recognized the long-term impact with less health insurance cost and greater ability to perform the physical requirements of the job.”

Despite Nofzinger’s feeling towards the fitness test, Behnke hopes to modify the program during the next round of contract talks to lessen the city’s accountability if an accident occurs.

“Appleton officers take fitness very seriously and take care of themselves, so we want to incentivize that,” Behnke said. “I’ve asked the chiefs to look at how we can change the contract to reduce the liability.”

Nofzinger retired in 2011 after serving 29 years on the force.  He said he doesn’t believe that the ruling will result in a spike in similar cases, and he said his case was a victory for organized labor and emergency officials.

Related source:  National Association of Injured and Disabled Workers

Background

Robert Decourcey Jr. worked as a corrections officer for the California Department of Corrections.  The inmates he oversaw could not be left alone, so at least one officer needed to be stationed at the facility 24 hours a day.  To compensate for possible conflicts or sick employees, the officers were allowed to freely switch shifts.  This process helped the California Department of Corrections save on overtime costs, and employees were happy because they could manage their schedules as needed.

The Case

Decourcey received a call from one of his co-workers asking if he could switch shifts.  The co-worker’s grandmother had fallen ill, and he needed to take her to the hospital.  Decourcey agreed to take the early shift, and his co-worker would take the afternoon shift once he had helped his grandmother.

Decourcey’s shift started at 6 a.m., so he left for work before the sun rose.  On his commute, his car hit a patch of black ice and he crashed over the side of a ravine.  He suffered numerous injuries and applied for workers’ compensation.

The Ruling

Under normal circumstances, commutes to and from work are not compensable under workers’ compensation law. Usually a person needs to be ‘on the clock’ or suffer the injury on company property to be awarded a claim, but there are other exceptions.

Decourcey’s lawyers argued that their client wasn’t just commuting to work, rather, he was engaged in a special order from his employer.  They argued that because Decourcey swapped shifts for a co-worker, he was aiding the state by saving overtime costs and therefore he deserved to receive different consideration.

The court agreed, and Decourcey was awarded compensation benefits.  However, the Appeals Court of California saw the case differently, and overturned the original court’s decision.  In their findings, the Court of Appeals said Decourcey was engaged in nothing more than an ordinary commuting accident.

Related source:  Business Management Daily

Rochelle Boswell Pender , 71, was working as greeter in Wilson, N.C. next to loss prevention team-member Sean Respass on the day of the incident.  Pender’s job was to welcome patrons to the store when they entered, while Respass was tasked with catching at least eight shoplifters a month.

According to testimony, Respass believed a customer named Joshua Lambert was shoplifting, so he asked Lambert to accompany him to the back of the store for questioning.  Lambert initially agreed, but soon turned and sprinted towards the exit.  Respass began to chase Lambert, even though Wal-Mart’s loss prevention policy forbids employees from chasing suspects.

As the pair neared the front of the store, both men collided with Pender, which knocked her off her feet.  She suffered a fatal head injury as a result of her fall.

Pender’s estate later filed wrongful death charges against Wal-Mart, Respass and Lambert, but the charges against Wal-Mart and Respass were dismissed as they are both immune under North Carolina’s Workers’ Compensation Act.  Although he was cleared of wrongful death charges, Respass was fired for violating the store’s no-chase policy.

“The fact that Wal-Mart Associates has implemented a no-chase policy evidences that it prioritizes the safety of its employees and customers,” Judge Rick Elmore wrote for a three-member panel of the North Carolina Court of Appeals. “Wal-Mart Associates terminated Respass for violating this policy, further indicating its commitment to safety.  Additionally, the record indicates that no prior injuries have resulted from the imposition of the quota system.”

During his trial, Respass argued that:

• Lambert threw Pender into his path
• He slowed down before coming in contact with Pender
• He did not believe that his impact caused Pender to fall
• Lambert was the person who actually knocked Pender over

Elmore agreed with Respass’ version of events, saying “the record indicates that Respass engaged in a foot-chase and accidentally collided with a co-employee. Such conduct does not evidence a reckless or manifest disregard for the consequences so as to warrant a finding of willfulness and wantonness equivalent in spirit to actual intent.”

Lambert was charged with two counts of simple assault, but the charges were dropped after police viewed surveillance footage of the incident.  Law enforcement officials also declined to pursue shoplifting charges against Lambert, although the appeals court said the wrongful death suit against Lambert could continue.

Related source:  The Wilson Times

That being said, you should exercise caution before making the decision to refuse a job offer. If your refusal is determined to be unreasonable, the workers compensation insurer can cut off your wage loss.  In determining what is considered “reasonable”, the IME looks at the facts of your specific case.

In reviewing your decision, your doctor’s opinion and restrictions will be considered.  The judge will also consider additional factors which might be preventing you from going back to work.  For example, if you worked nights prior to getting injured so that you could watch your kids during the day, and now the company wants you to go back to work during the day, your refusal will likely be considered reasonable.  If you refuse to return because you “aren’t ready” despite being cleared by a doctor, or you don’t want to go back to work for that employer, your refusal will likely be ruled unreasonable.

Listening to the advice of your doctor is generally a good idea, but you should also consult a trained workers’ compensation attorney before refusing any job offers.

1. Fishermen – Deep sea fishermen expose themselves to intense risks every day.  Not only are they exposed to heavy equipment and sharp hooks, but one big wave can send them over the side of the boat.  They also lack the ability to get to a medical facility to treat injuries if they are far out at sea.
2. Logging workers – Logging workers suffer numerous injuries in their line of work as they are constantly moving heavy logs.  The top injury for workers across any industry is overexertion, and overexertion injuries occur when someone lifts, twists or moves in an awkward way.  Loggers often suffer overexertion injuries when moving logs, but they are also subject to limb injuries if they are involved in the cutting process.
3. Flight Engineers and Pilots– Much like the above jobs, flight engineers work with heavy machinery on a daily basis.  Both flight engineers and pilots subject themselves to danger when testing large equipment.  Pilots also run the risk of being in an airplane crash.
4. Farmers and Ranchers – Farmers work with huge machinery year round while tending their crops and animals, and they often try to fix their broken equipment on their own.  Accidents with wheat threshers or combines are not uncommon.  They also are subject to overexertion injuries.
5. Mining Machine Operators – Mining machine operators also work with heavy equipment, but they are exposed to a different set of deadly forces.  Machine operators work with hazardous chemicals, some of which are highly flammable.  Fires or overexposure to toxic chemicals can occur if precautions aren’t taken.
6. Roofers – Roofers put themselves in danger every time they go to work.  Roofers work at high heights and one wrong step can send them tumbling.  They are also exposed to high temperatures during the summer, which can lead to heat stroke and exhaustion.  Neither is ideal, especially when you’re 50+ feet in the air.
7. Garbage Collector – Sanitation workers have a variety of conditions that makes their job unsafe.  They work with heavy compactors that can crush limbs if they get caught in a machine, and constant lifting and twisting can lead to to overexertion injuries.  Oftentimes garbage collectors ride on the side or the back of a moving vehicle, which can be extremely dangerous if they slip or lose their grip.
8. Truck Drivers – Truck drivers often drive long hours in some of the worst weather conditions.  They drive through the night to get materials from one place to another, and this puts them in danger of fatigue.  If they were to fall asleep at the wheel, a deadly accident can occur.
9. Industrial Machine Workers – Industrial machine technicians work with heavy equipment during the installation and repair process.   Oftentimes they are tasked with installing heavy equipment and removing the old, defunct unit.  They also come in contact with electrical equipment, which can cause burns or death.
10. Police Officers – Police officers put themselves in danger nearly every day.  Whether it’s apprehending a suspect with a gun or engaging in a high speed pursuit, there are a wide variety of risks for every officer.

Related source:  Risk Management Monitor

“We will not now second-guess those determinations on appeal,” the court stated in its ruling.

The decision came after the county sought to overturn a ruling resulting from a 2006 incident involving Juneau County Sheriff’s Detective Tim Andres.

According to court records, Andres slipped on the wet floor of the Juneau County Justice Center in 2006.  He injured his right knee in the fall, and the county did not dispute the compensation for the resulting knee surgery Andres needed.

However, the county challenged the assertion that a later infection in the knee, which eventually needed replacement surgery, was directly caused by the initial injury.  Prosecutors went further in their argument, saying Andres used a hot tub too soon after surgery, in direct contradiction of doctor’s orders.

Prosecutors argued that the claim should have been denied because Andres testified that he did not use a hot tub after his initial surgery, even though information contained in the medical reports of doctors who treated him created “legitimate doubt” about the cause of the infection.  Despite their best efforts, the appeals court stood by the original ruling.

“We reject the county’s argument that the inconsistencies between the medical reports and Andres’ testimony create a legitimate doubt,” the appeals court said in its decision.

The ruling reflected a similar decision made by Sauk County Circuit Court Judge Patrick Taggart, who said in his November 2011 ruling that the agency had not ignored “credible and substantial evidence” that Andres may have exacerbated the problem by entering a hot tub before the first surgery had fully healed.

The ruling means that the county, which is self insured for worker’s compensation purposes, must pay Andres and his attorney more than $73,000 for medical bills and missed weeks of work in 2007, 2008 and 2009.

Related source:  WiscNews.com

In Minnesota, if a person is injured on the job, their exclusive remedy is the workers compensation system. In other words, you can file a work comp claim, but you cannot bring a civil suit against your employer for any negligence on their part. There may, however, be other people you can bring a claim against, if the negligence of a third party (who is not your employer) contributed to your injuries. For example, if you slipped in a puddle of oil at work walking into the building, and the building is owned and maintained by someone other than your employer, you may be able to bring a claim against the owner of that building for negligence.

You may also be able to bring a claim if it is determined that you are not an employee of the company. For example, if you are an independent contractor. These types of claims do require you to prove that the other party was negligent, which is sometimes difficult. Just because an accident occurred does not necessarily mean that someone was legally negligent. Minnesota workers compensation does not require you to prove negligence.

Too often injured workers are unable to move forward because they are fixated on fault and blame. The reality is that fault is not often discussed in the workers compensation setting. This may not be fair, but it is the reality of the situation and cannot be changed. A successful outcome is more likely to be reached if you can focus on the things within your control.

Social media sites are the most popular way for people to share their ideas and activates in the digital realm, and more companies are monitoring their employees’ social media presence.  Companies keep an eye on social media sites to make sure employees comply with company guidelines, but they also turn to these sites to investigate possible workers’ comp fraud.

“It’s really amazing what people put on Facebook, and then brag about it,” said Andrew Matthews, whose company Avizent hired a consultant to monitor social media activity. “You’re looking for an indication of activity they’re talking about that they’re not supposed to be doing.”

Depending on a person’s privacy settings, many companies can legally access and view information on sites like Facebook and Twitter.  Companies can usually find social media profiles through a simple Google search, and certain posts can lead to disciplinary action.

“There was one instance of an individual who says he was too injured to work, yet he mounts a video camera to the handlebars of his BMX bike and participates in a race and posts it,” said one district attorney. “It completely conflicts with [the physical limitations].”

In most cases, posts are much less incriminating than the above example, but they still prompt investigation.  Companies often hire outside investigative firms to keep an eye on supposedly injured workers.

“If someone writes on his wall that he’s going to be moving this weekend, that’s a good time to do some surveillance,” says one fraud expert.

Social media isn’t just being used to monitor your activity, it can also be used to find potential witnesses or prove collusion, said Richard Harer, vice president of Specialized Investigations.

“If there are two people who are in an auto accident and they say they don’t know each other, but we find out later that they are ‘friends’ on Facebook,” said Harer. “It turns out that these two people might be colluding to commit fraud. That may blow their case apart.”

Legality of Information Collection

Knowing how to protect your information is crucial in making sure only people you want to see your information have access to it.  For example, Facebook allows users to make their information available to anyone in their network (like University of Minnesota students), to anyone who is a friend of a friend, or to only people who they approve.  Most people want to restrict their information to only people they are “friends” with, but that isn’t always the default setting.  If your information isn’t protected, it can be used in court.

“It’s fair game,” said Roy Mura, who practices law in New York.  “There is nothing unethical for attorneys to be harvesting information from open sites from those who don’t understand the privacy controls.  It’s the protected content that’s more difficult to obtain.”

Mura added that social media sites won’t turn over protected information in civil subpoenas, saying “they’ve won over and over again.”

This can make it difficult for companies to gain access to employee profiles.  They can set up a Facebook page and send a friend request, but employees have no obligation to accept the request.

One technique that has come under considerable scrutiny is when a company creates a fake Facebook page and identifies themselves as someone they are not in order to gain access to personal information.  Currently, Minnesota is the only state in the nation with a law that forbids companies from creating a fake profile, but Mura believes it is only a matter of time before more states adopt similar measures.

“Facebook’s own terns of use forbid it, but the most direct result is to be thrown off Facebook,” said Mura

Harer added that using fake profiles is an issue that has been brought up by numerous insurance companies.

“Insurance investigators in a number of states — currently 14— have the legal and ethical right to utilize a pretext as long as it’s for the investigation of a suspected insurance fraud claim,” Harer says.

Both Mura and Harer believe individuals need to strongly consider what information people are posting to social media sites, especially if they are too sick or injured to come into work.

Stephanie Cannon, a smoker for 18 years, said she smokes nearly a pack a day, but changed her routine after her supervisor told her “we don’t want you smelling like smoke when you come here.”

Cannon said she stopped smoking on her breaks and in her car, and she bought new work clothes.  She even tried to keep her new clothes fresh by sealing them in a plastic bag and spraying them with air freshener.

Her efforts were not deemed satisfactory by the hospital, as they encouraged her to shower at work instead of at her home, and provided her with resources to quit smoking even though she wasn’t interested in quitting.

Cannon said she was even advised to “avoid my husband in the morning” because he also smokes.

Despite her efforts, Park Nicollet fired her, sparking a debate over the legality of the termination.

Park Nicollet has a strict “no smoking” policy, which clearly states that no smoking is allowed on the premise at any time.  Minnesota law states that an employer cannot hire or fire an individual for engaging in a legal activity if it takes place off the premises during non-work hours, but it’s not that black and white.

Under the law, employers have the right to restrict tobacco use during non-working hours if their use creates an “occupational-related hazard”.

The American Civil Liberties Union has gotten involved in the case.  Spokesman Chuck Samuelson said that the law does not offer the same protection for each individual.

“Private employers can do things that governmental agencies cannot, to their employees,” Samuelson said. “The Constitution simply does not apply in the same way. If she worked for Hennepin County or Ramsey County Hospital she would be better protected than if she worked for a private hospital, which she did.”

The matter will likely play itself out in the courtroom, but Samuelson said the case balances a delicate line between personal freedoms and public safety.

“You’ve got one person’s desire to indulge in a legal activity versus the government’s duty to protect the population as whole from known bad things (like second-hand smoke),” Samuelson says.

Mark Wernimont, an advocate for smokers’ rights, said although Cannon worked at a hospital her duties did not involve firsthand health care.

“She as a receptionist really had nothing to do with the hands-on health care,” Wernimont said.  “It’s just one more nail in the coffin of freedom.”

Park Nicollet would not comment on the matter, but Cannon said she shouldn’t have to feel like an outcast for smoking on her own time.

“What I do in my home or outside of work when I’m not punching into that little clock is my business.”

The NCCI’s original report from 2006 was updated this month to reflect more current information, and the report revealed some interesting trends.

Key findings

• The frequency of motor vehicle fatalities and injuries has continued to decline since 2006.
• Researchers believe the data reveals that traffic-related injuries are reduced during economic recessions, as a similar pattern was observed during the Great Recession.
• Risk varies by vehicle type.  Although frequency of truck fatalities and passenger vehicle fatalities is nearly the same, nonfatal injuries are more common in passenger vehicles.
• Some of the most common factors for a vehicle-related high-severity workers’ compensation injury include speeding, distracted driving, and impairment.
• The rate of traffic-related injuries declined more than nontraffic-injuries during the economic recession.
• Motor vehicle accidents are more likely to be a “multiple-claim event”, and severity is higher for multiple claim events.
• Not surprisingly, motor vehicle accidents result in more severe claims than an average workers’ compensation claim.
• The top diagnosis for traffic accident claims are neck injuries.

The NCCI updated their information to reflect more recent claims, and they also added claims involving multiple claimants.

Related source:  Insurance Journal

Am I Covered?

Workers’ compensation is viewed as a no-fault system, meaning that unless you intentionally cause harm to yourself, you will likely be covered at work or at a work-related event.

The general question for workers’ compensation claims is whether the employee was injured “within the course and scope of employment.”  Factors that may substantiate an employee’s claim include:

• The employer expects or requires the employee to attend the event.
• Employees are paid to participate in the event.
• The incident took place on employer property, or on property for which the employer failed to take necessary safety precautions.
• The employer benefits from the event.

Workers’ compensation claims stemming from a work-related party are often more complicated than claims that are a direct result of on-the-job activities, so it’s important to contact an experienced workers’ compensation attorney if you are injured at a work party.

Steps to Avoid Work Party Injuries

Below are some steps that both employee and employer can take to make holiday work parties safer for all involved.

• Have the party during the day – People are less likely to drink heavily if the party is held during the day or as part of an extended lunch.
• Limit alcohol consumption – Consider handing our drink tokens or limiting yourself to one or two drinks.
• Hold yourself to appropriate workplace conduct at your work party – Although the atmosphere will be more lighthearted and relaxed, remember you’re still at a WORK party.  If you wouldn’t jump up on a table at work, don’t do it at the work party.
• Plan ahead – Whether you plan ahead by arranging a designated driver or by calling a cab, make sure you and other employees get home safely.
• Avoid dangerous activities – This may sound obvious, but avoid dangerous tasks like lighting fireworks or popping champagne bottles in a crowded area.

Although playing professional football comes with inherent risks, current and former NFL players may still file individual claims, and with new focus on the debilitating effects of head injuries these players may be eligible for larger settlements.

The NFL has taken many steps to reduce injuries to its players, including penalizing and fining dangerous hits, but more changes may be on the horizon as teams try to lessen future workers’ compensation payments.  Recent discussions have spoke about eliminating the three-point stance for offensive linemen, which results in a higher force of impact with defensive linemen, and the elimination of kickoffs.

An increase in lawsuits

The NFL is facing a new wave of lawsuits as recent studies have linked football to long-term brain damage.  More than 3,000 former players or family members have filed lawsuits over concussion-related damages, but these lawsuits could also change the league’s workers’ compensation process.

In the past, workers’ compensation claims have been manageable for NFL teams because they are insured and have enough capital to cover claims and deductibles.  The deductibles are around $500,000 for a player who has filed a claim, but that number could rise significantly as more information about long-term head trauma is uncovered.

Unique claim procedure

Like any employee, NFL players must prove that they were injured on the job in order to be eligible for workers’ compensation benefits.  Claims are filed and settled at the state level, but because of the nature of their job, NFL players can sometimes file their claim in a state that offers more expansive coverage.

Recently, two former Washington Redskins players filed claims in Maryland because the state has a better record of offering more extensive benefits.  Their case is unique because the Redskins practice in Virginia, but their home games are played in Landover, Maryland.  Despite spending more time participating in football activities in Virginia, the court ruled that the players were eligible to file in Maryland.

Another state that offers unique workers’ compensation benefits is California.  To file a claim in The Golden State, players don’t need to be a member of a California-based team, they only need to have practiced or played in the state.  This has led to an influx of California-based workers’ compensation claims.

The league has worked with teams to move compensation cases back to their original state jurisdictions.

The league has also won some California-based claims because a player must prove he was injured in California, which can be difficult if the player only played in the state a handful of times in his career.  Officials are also working to add language to player contracts to limit where a player can file a claim, but courts have the final decision in processing these claims.

Related source: ESPN

The study conducted by Aon Risk Solutions tracked workers’ compensation claims from over 1,000 health care facilities nationwide.  Aon forecasts that the health care industry will experience an annual loss rate of $0.79 per $100 of payroll, which highlights the consistency that the industry has had over the last five years.  The stabilized loss rate is expected to increase at a modest 1 percent annual rate, while actual workers’ compensation claims are expected to decrease at a 1 percent annual rate.  Despite a lower projection of workers’ compensation claims, the loss rate is expected to increase because claims are expected to be more severe.  The report highlighted some medical improvements that have helped decrease workers’ compensation claims.

Factors responsible for reduction in workers’ compensation claims

• Improved beds and patient lifting devices has put less strain on medical professionals when tending to and moving a patient.
• Nursing experience and competency has increased as the medical field has experienced the lowest staff turnover rate in years.  Increased knowledge and experience leads to less reported injuries.
• A renewed emphasis on patient safety has created a safer environment for everyone involved.

Although healthcare systems are seeing a decrease in claims, claim severity is on the rise and the costs associated with these claims are expected to increase at a 2 percent annual rate.

Factors responsible for increase in workers’ compensation claim costs

• A more severe claim generally puts the employee out of work for a longer period of time, which increases the payment made to the injured worker.
• A tightening economy has led to higher medical, indemnity, and legal costs.
• An aging workforce may also increase the likelihood of suffering an injury on the job.

Martha Bronson Posey, a senior consultant and actuary with Aon Global Risk Consulting, said the number of former health care employees who are returning to the field bring more experience and knowledge of safety procedures.

“It has been illustrated time and again that return to work programs keep business and premium costs down as well as benefit injured workers,” said Posey.  “It’s a win-win for both the health care system and injured worker.”

Related source:  Insurance Journal

The report shows that sick workers usually perform below their normal standards and the likelihood for injury increases when employees try to work through a cold.

Despite the higher possibility for injury, more people are coming to work while they are sick for a variety of reasons.  Although many companies urge their employees to stay home if they are sick, the thought of work piling up or being viewed as “not dedicated” often pushes people to come in anyways.

“They’re often doing it out of a sense of loyalty to their employer and to their fellow workers,” said Pat Staaden, who operates a consulting firm in Plymouth.

Recession and Human Resource Changes Play a Role

The recession is one reason why employees are attempting to work through a cold, because they don’t want to be seen as expendable.  As the job market tightens, employees know their absence sometimes speaks louder than their presence.

A change in personal day policies may also account for more employees working with a cold.  More businesses are shifting to a Paid Time Off policy, which combines sick days, personal days and vacation days into one big pool of general time off.  The goal of Paid Time Off is to prevent sick days from being used as bonus days off, but now employees will work through a cold in order to save an extra day of vacation down the road, said Karin Kurt, former president of the International Public Management Association for Human Resources.

“[People] see it as a trade-off between a sick day and day of vacation, and they’re more inclined to focus on vacation,” she said.

Sick Children May Also be to Blame

Oftentimes employees are forced to take a sick day not because they are sick, but because their child is.

“I’ve run out of leeway,” said Marilyn Johnson of Minneapolis, who said she “already has spent more time than I should have” staying home to tend to her sick children.

While people like Johnson are forced to decide how to spend their precious time off, officials say personal hygiene can go a long way in keeping you healthy at work.  Washing your hands and keeping disinfectant wipes near your workstation can reduce contamination risks, said Dr. Melody Mendiola of the Hennepin County Medical Center’s clinic in Brooklyn Center.

“Practice good hand hygiene,” said Mendiola. “That’s the No. 1 thing.”

Related Source:  Star-Tribune

CEC Entertainment Inc., which manages over 500 Chuck E. Cheese restaurants, has seen a reduction in workers’ compensation claims and liability costs since they installed security cameras in all their stores in 2009 and 2010.

Director of risk management Jeff Strege said the restaurant has reduced claims costs by $600,000 since the cameras were installed.  The surveillance cameras were part of a larger effort to reduce liability costs, but Strege said the cameras help prove what transpired when an incident occurs.

“We’ve made a number of claims literally vanish once we produce the video footage to show that what the claimant says, whether it’s an employee or a guest … didn’t really happen,” Strege said.

Not only do the surveillance cameras help prove liability, but they also prevent fraudulent claims before they occur because the employee knows they are being filmed.  Strege said employees are less likely to participate in a potentially harmful act if they know they are being recorded.

Thomas Martin, who runs Martin Investigations and Security Services, said many companies like
CEC Entertainment Inc. have consulted his firm in regards to surveillance camera installation.  He said security cameras are popular among larger business, but smaller businesses are also considering installing cameras.  Martin also said that companies need to ensure they are following all privacy and documentation laws associated with surveillance.

“Where your eyes are allowed to see, the cameras are allowed to see,” Martin said.

Cameras aren’t allowed in certain areas, like a restroom or shower facility, but companies can spend more time looking into claims that happen off camera because of their rarity.

“If you have pretty much 75 percent coverage, and they happen to fall and claim an injury in the other 25 percent, it becomes very suspicious that (the injury) wasn’t recorded,” Martin said.

Not only can cameras prevent workers’ compensation fraud, but they can also validate legitimate claims.  Companies can get a better understanding of how the injury happened, and take preventative steps to deter similar injuries.

Although the cameras might work against the company in some claims, they usually end up saving the company money.

“In the long run, especially if a company has a lot of employees, I think it would pay for itself,” Martin said.

Related source:  Workforce.com

The employment-cost index grew 0.4% from the second quarter to the third, the Labor Department said Wednesday.  Although the employment-cost index grew, it fell short of the 0.5% gain expected by economists.

70% of the employment-cost index is comprised of wages and salaries, which grew 0.3% during the most recent quarter, but benefit costs rose 0.8%.

On a year-over-year basis, total employment costs rose 2.0%, with wages up 1.7% and benefits up 2.6%.  Health benefits once again drove the gain, rising 3.0% from the previous year.

Wages and benefits increased despite the soft labor market, which left little bargaining power for workers seeking better salaries and benefits.

Unemployment fell to 7.8% in September, the lowest level since 2009, but economists expect the jobless rate to rise to 7.9% when the government releases its October measure of the labor market Friday.  Economists also expect the report to show that the U.S. added 125,000 jobs during the month.

Still, salaries more than kept pace with mild prices increases in the last year.  The personal-consumption-expenditures index, which helps measure and track inflation, rose 1.7% in September from a year earlier, according to the Commerce Department.

Compensation among the private-sector also saw a 0.4% growth in the third quarter, according to Wednesday’s data.  Wages increased 0.4%, while benefits rose 0.7%.  In addition, state and local-government workers’ compensation grew 0.3% as wages rose 0.2% and benefits increased 0.8%.

Local governments continue to work within the constraints of a tight budget.  Overall outlays from state and local governments fell in the third quarter even as the federal government boosted spending.

Tiffani Webb, the 37-year-old guidance counselor, was fired last December after working 12 years at Murry Bergtraum High School for Business Careers. The reason for her termination – photos of Webb dressed in lingerie and swimsuits from her former career as a model 17 years prior.

Webb disclosed her former job as model to the school during the hiring process. It wasn’t an issue until photos of her wearing scantily clad outfits surfaced online.

“The inappropriate photos were accessible to impressionable adolescents,” a chancellor’s committee ruled. “That behavior has a potentially adverse influence on her ability to counsel students and be regarded as a role model.”

Webb disputes these claims and cites her positive history as a guidance counselor as evidence. She is claiming wrongful termination and sexual discrimination and is seeking reinstatement as well as back pay.

What do you think? Should Webb have been fired for her previous career as a model? Or is she a victim of wrongful termination?

Related Sources:

huffingtonpost.com

The incident occurred back in 2008, when Lewis was dancing at Studio 54. A gunfight broke out in the club and Lewis caught some of the stray gunfire, injuring her intestines, kidney, liver, pancreas, and uterus. She was rushed to the hospital and underwent several surgical procedures that left her with one less kidney and severe scarring that will prevent her from dancing again. Doctors say she may not be able to have children either.

Lewis applied for workers’ compensation benefits to help pay off her massive medical bills, but her claim was denied on the grounds that she was an “independent contractor” rather than an “employee.”

Lewis argued that an employment relationship existed because of the following factors:

• The club managers told her where, when, and how to dance – thus they had “control” over her
• Lewis was required to pay a tip-out fee each night
• The club provided facilities (VIP rooms, lockers) and equipment (poles, tip baskets)

But the Court of Appeals ultimately ruled that Lewis was not eligible for work comp because of the following reasons:

• Lewis wasn’t asked to come to work on the night of the incident, and could’ve left at any point
• The club didn’t pay Lewis any wages on the night of the incident – she received only tips

Do you think the court’s decision was fair? Or should Lewis be awarded workers’ compensation benefits for the injuries she sustained?

Related Sources:

wbtv.com

The case, Nunn v. Noodles & Co. & Zurich American Insurance was a retaliation claim against Noodles & Co. and their workers’ compensation insurer. The employee’s claim for retaliation was initially dismissed, but on appeal to the 8^th District court, the claim was sent back down and slated for trial.

Heather Nunn was severely injured as a result of a motorcycle accident she was involved in when she was riding to a work-related meeting.

After suffering significant injuries, medical bills, and wage loss as a result of the accident, the employer and the insurance company allegedly impeded, prevented, and obstructed Heather Nunn from obtaining appropriate workers’ compensation benefits.

While the case has not been formally resolved yet, it does highlight the fact that employees have protections in Minnesota, and one of those protections is the ability to bring retaliation claims against employers and insurers who discharge, threaten to discharge, or intentionally obstruct an employee from seeking work comp benefits.

The case is a good reminder that injured workers not only have rights to worker’s compensation benefits, but that they have additional protections securing those rights and making it illegal for anyone to intentionally obstruct someone from seeking benefits.

Related Sources:

Minnesota Lawyer Magazine

Cheryl Schultz, widow of the heroic officer, has lost two legal battles in the ten years since her husband’s death. On Wednesday she will plead her case again, this time to the New Mexico Supreme Court.

The insurance company involved argues that Mrs. Schultz missed the deadline for filing her work comp claim, and that Mr. Schultz was off duty when the incident occurred – thus nullifying his right work comp benefits.

Mrs. Schultz argues that police chief John Garcia agreed to file the workers’ comp claim for her. When she found out a year after her husband’s death that nothing had been done, she filed a claim.

The missing deadline is one issue, but the real question in this case is whether or not Officer Schultz was in the course of employment when he dove into the river. One side argues that since Schultz was off duty, he was not on the job and should not be entitled to work comp benefits. Others would say that by diving into the river to save the drowning boy, Schultz was doing his duty as an officer of the law and thus should be allowed benefits.

What do you think? Was Officer Schultz acting in the line of duty? Should his widow be entitled to work comp benefits?

Related Sources:

policeone.com