Afleveringen
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This episode opens a new topic for the Workers Comp Matters podcast: repetitive stress injuries, sometimes referred to cumulative trauma, acquired on the job. What happens to someone when someone develops a workplace injury, physical or mental, that can’t be traced back to a single, isolated event? Or what if the injury is the result of cumulative trauma developed under multiple employers?
Bodily wear and tear, the result of daily repetitive labor, is real. Think of the brick mason on his knees for decades or the mechanic crawling under vehicles and lifting heavy items, or the carpal tunnel injuries from working at a keyboard week in and week out. These injuries pose challenges when asked for a “date of injury” on a claim form.
For attorneys representing victims of repetitive stress, clarity is key, explaining clearly to the investigator that there is no single date. The injuries were the result of the entire period of labor. Lawyers need to think creatively to fully communicate that the injury is the direct result of the workplace.
We all “break down” as we age. For a successful claim, attorneys must show that the traumatic “wear and tear” injury is a direct result of the workplace, not simply the result of ordinary aging.
Mentioned in this Episode:
Massachusetts Zerofski Case -
The “times they are a changing” in the world of Workers’ Compensation, a system developed when the relationship between workers and employers were more clearly defined. Guest Emily Spieler is an accomplished author, former professor, practicing attorney, and government official with a career that spans the space of workers’ rights, safety, and compensation.
The 100+ year old system of Workers’ Comp has evolved and continues to change and adapt. But the bottom line is we still have a duty to care for injured workers. How do we fit today’s challenges into an old model?
There’s a growing debate today in both legal and government circles over the definition of worker/employer relationships. The world today is more complex than when compensation rules were developed, and the nature of work has moved beyond old factory and mining jobs.
Contract workers, gig employees, and working remotely are shaking up the working world. Who should cover an Uber driver? As unions fade, who helps injured workers understand their rights, file claims, and protects them from retaliation for asking for compensation? Robotics, AI, rush warehouse fulfillment, and even jobs that haven’t been invented strain the limits of our current system. This is a fascinating conversation.
Mentioned in this Episode:
“(Re)Assessing The Grand Bargain: Compensation For Work Injuries In The United States, 1900-2017,” Emily A. Spieler, Rutgers University Law Review
“US Court Rules Uber And Lyft Workers Are Contractors,” BBC
“Oklahoma Workers’ Comp Opt Out Ruled Unconstitutional,” Insurance Journal -
Zijn er afleveringen die ontbreken?
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A person getting hurt at the workplace is never funny. But it can be instructional to examine some of the strangest ways people manage to become injured at work. Hear about some “interesting” cases.
A schoolteacher whose leg “fell asleep” while he sat in a classroom falls trying to stand up. He broke his femur. Is he entitled to compensation from his employer?
An Amtrak baggage handler was visiting the restroom when someone tossed a firecracker into the room. Startled, he fell and was injured; is Amtrak responsible? How about a city worker who says he picked up a firecracker he found on the job, and it mysteriously exploded, injuring him?
People get hurt at work, but as these and other cases illustrate, it’s not always the responsibility of the employer. (And sometimes, workers do silly things…).
Mentioned in this Episode:
Tom Robinson’s Top 10 Bizarre Workers’ Comp Cases For 2022
Steven Silberberg v. Palm Beach County Schools
Phillip Durance v. National Railroad Passenger Corp aka Amtrak
Dylan Junior v. Illinois Workers’ Compensation Commission
Jonathan Hollis v. Acoustics, Inc. and Associated General Contractors of MS, Inc.
Donald Weed v. Spraying Systems, Co
Stanis v. Workers' Comp. Appeal Bd. (Brand Energy Servs.)
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HIPAA, the Health Insurance Portability and Accountability Act, is 27 years old. For better or worse, it was designed to protect patients. But in reality, it has also hampered attorneys in their quest for medical records critical to ensuring fair compensation for injured workers.
Guest Jared Vishney is the founder and CEO of the medical record retrieval technology company Arctrieval. He says most firms wait more than three months for medical records, some as much as four months or more. HIPAA regulations (and penalties) have turned medical record holders so risk averse that it’s hard for patients to get their own records.
The rules around HIPAA and medical records are murky. How much time do institutions have to turn over requested records? How can attorneys and clients push providers to turn over records faster? Workers’ Comp attorneys may find themselves caught in a disconnect between medical record technology and a web of legislation that is supposed to oversee electronic health record systems and rates for copies of those records. It’s hard for clients and attorneys to know they’re getting the full picture, and costs can run into the thousands of dollars.
Hear about tips and tricks for getting the records you need. If you’ve been frustrated by a tangled medical records system, this episode of Workers’ Comp Matters is for you.
Mentioned in this Episode:
“Health Insurance and Portability and Accountability Act,” Centers for Disease Control and Prevention
“Section 164.524 - Access of individuals to protected health information,” Legal Information Institute, Cornell University
“Medical Records: Fees and Challenges Associated With Patient Access,” GAO report to Congress -
Did we ever learn a lot during the once-in-a-generation health event that was COVID! Guest Dr. Bogdan Savych of the Workers Comp Research Institute (WCRI) is a policy analyst who is studying the lasting effects of the illness, as well as lingering cases of Long Covid.
What is “Long COVID?” How big is the problem? Is it even real? Is a pandemic an occupational disease? Savych is investigating who should pay and who decides how much a claim is worth. Imagine months, maybe years, of shortness of breath, brain fog, anxiety, and chest pain. The question is whether the workplace is responsible.
For Workers’ Comp attorneys representing clients, this becomes an issue of connecting the workplace to the initial infection, then to “Long COVID,” and finally to the worker’s ability or inability to return to work.
If you’re confused, this is the place to start. Four years after the onset of COVID, we’re still learning new things and still committed to helping workers recover and get back to their jobs.
Mentioned in this Episode:
Workers Compensation Research Institute, WCRI
“Long COVID in the Workers’ Compensation System in 2020 and 2021,” by Dr. Bogdan Savych
Dr. Bogdan Savych's previous appearance on Legal Talk Network
Centers For Disease Control And Prevention, CDC, “Long COVID Or Post-COVID Conditions”
National Institute for Occupational Safety and Health, NIOSH -
Our understanding of work and workplaces may have been forever changed by the COVID pandemic. Many workers today are working from their own homes or conducting meetings by phone during their occasional trip to an office.
When you’re working from home and slip and injure yourself in your own bathroom during the workday, who is responsible? If you are hit by a careless driver while conducting a business meeting by phone in your car, who pays?
Guest Cathy Surbeck of Surbeck Law is the incoming president for the Workers Injury Law & Advocacy Group (WILG). She shares how WILG members are grappling with a legal system that is struggling to keep up with the evolution of the workplace.
And while financial support is crucial in any workplace injury, so is medical care, rehabilitation, and recovery. After COVID, many care providers have shifted to a hybrid office and telehealth model. It remains to be seen whether this model can help an injured worker fully recover and return to work.
This is a challenging time for the Workers’ Comp field. Everything is changing, from where we work to how we receive care, and even how resolution hearings are held. Don’t be left behind. -
Guest Dave Pederson is the producer of a new film, “Americonned,” that examines how the past few generations of workers have suffered from income inequality and been crushed by big business and its government influence. Wages aren’t keeping up, yet productivity has rocketed, on the backs of the American middle class.
The rich are getting richer, the middle class is seeing the bottom drop out. Why? And what do seismic shifts in wealth mean for the future of the middle class, unions, and the lawyers who represent them?
Organized labor and a strong middle class have been the drivers of Workers’ Comp protections. Without them, we may need to worry about the future. But as Pederson explains, a renewed interest in union membership and strength could be the turning point for workplace protections.
If the American working class is being conned, how can Workers’ Comp lawyers help?
Mentioned in this Episode:
Pitchfork Economics podcast
Laffer Curve
Trickle Down Economics explained
“Amazon Loses Bid To Overturn Historic Union Win At Staten Island Warehouse,” NPR
“UPS Deal Raises The Bar For Worker Demands,” Axios
Starbucks Workers United
Gaslit Nation podcast
Kurt Andersen, “Evil Geniuses,”
President Lyndon B. Johnson “War On Poverty” speech
“Student Loan Debt Crisis,” Education Data Initiative -
What about the rights of an injured worker’s spouse and family members after a work-related injury or illness? Guest Michael Duff, law professor, former blue-collar worker, and expert on Workers’ Comp walks us through the California “Kuciemba Case,” a case where an employer may have violated COVID-19 pandemic regulations, infecting several workers. Victim Peter Kuciemba was infected and later his wife contracted the illness and ended up on a ventilator. Is he entitled to Workers’ Compensation? Beyond that, what about his wife?
This is a tough issue that comes down to what’s called the “exclusive remedy,” meaning Workers’ Compensation protections are understood to be responsible for workplace injuries, replacing civil tort liability. But if a spouse isn’t part of the employment contract, does “The Grand Bargain” apply?
Remember the sickened meat packers during the pandemic. The legal system said family members of workers who infected them, as a result of contracting the illness at work, cannot sue the workplace. Workers’ Comp trumps the civil case, even in case of employer negligence. Now, let’s go deeper. What about a non-family member, such as a romantic interest, or a friend?
This episode goes down a rabbit hole. But if you’re an attorney representing workers in workplace injuries, you’ve got to be thinking this way. How far does exclusive remedy go?
Mentioned in this Episode:
“At Least 59,000 U.S. Meat Workers Caught COVID-19 In 2020, 269 Died,” PBS Newshour -
Let’s talk about the F-word in Workers’ Compensation: Fraud.
Guest Connor Thomson is a second-year law student at Villanova University who won the College of Workers’ Compensation Lawyers John F. Burton Jr. Law Student Writing Competition with his paper “Fight Fire With Fire: The Need For Carriers To Be Afforded More Duties And Privileges To Combat The Pandemic Of Workers’ Compensation Insurance Fraud.” He explores an interesting, challenging issue in Workers’ Comp: Are employees sometimes cheating the system?
Workers’ Comp insurance fraud is a multibillion issue. Thomson takes a deep dive. The system does a lot of good, and employer fraud hurts workers. It happens. All fraud is wrong. But sometimes employees cheat, they collect a check for a workplace disability, but they work on the side, maybe under the table. That’s not a victimless crime either. It hurts us all, Thomson argues.
Sure, employers do check on workers who file claims, including the use of private investigators. And that comes with its own issues. But Thomson says controlling insurance fraud may have its place. If carriers can’t investigate, does everyone suffer because of higher insurance costs? This is an intriguing issue.
Mentioned in this Episode:
Workers Comp Matters, “Dissecting Fraud”
Connor Thomson “Fight Fire With Fire: The Need For Carriers To Be Afforded More Duties And Privileges To Combat The Pandemic Of Workers’ Compensation Insurance Fraud”
College of Workers’ Compensation Lawyers John F. Burton Jr. Student Writing Competition
Coalition Against Insurance Fraud
Coalition Against Insurance Fraud study and findings
Insurance Journal articles on Workers’ Comp fraud
Jesse Maxwell v. AIG Domestic Claims
Frontline, “The Myth Of Workers’ Compensation Fraud”
Workers Comp Matters, Legal Talk Network, archived episode, “The History of Workers’ Compensation With John F. Burton Jr.” -
Helping workers and their families get back on their feet after a workplace injury or other workplace-displacing health event takes more than legal aid, insurance, and even doctors. Injured workers are people first, and people have emotional needs. Guest Danielle Troxel is managing director of Kind Souls Foundation, a non-profit, donation and volunteer driven organization dedicated to helping displaced workers with the emotional support and services navigation assistance they need to recover.
Many of us see ourselves as our job. It’s part of our identity. Being stripped of that routine may lead to feelings of isolation or loss of identity. Having someone to talk to about those feelings can help people adjust and move forward.
Assistance is offered discretely, even anonymously. There’s no need to provide a case number or any details. No insurance companies need to be involved and no medical records are needed. Kind Souls Foundation simply wants to help.
If a client or someone you know has been displaced from work due to a health event and could use emotional support, they can contact the Kind Souls Foundation at their website, https://www.kindsoulsfoundation.org/ and schedule a session. Help is available online through a face-to-face video connection, through text and chat sessions, or by phone.
Sponsorship opportunities are available at the Kind Souls Foundation website. Individual donations are accepted online at https://kindsoulsfoundation.charityproud.org/Donate .
Mentioned in this Episode:
Kids’ Chance -
Marijuana was once fodder for stoner comedies and standup routines. But today, medical marijuana is a serious matter in Workers’ Compensation. Fair compensation, and proper medical treatment, is not always as clear as it should be. Laws evolve by the day, state by state.
Guest Jenifer Dana Kaufman is a Pennsylvania Workers’ Comp attorney who has developed a wealth of experience where marijuana law collides with fair compensation and treatment. In this episode of Workers’ Comp Matters, hear how Kaufman unraveled a complicated case and how competing state and federal laws tangle the issue of appropriate care when marijuana is involved, even when prescribed in a state where medical marijuana is legal.
Intent and medical recommendations matter, but can insurers be required to pay for a drug that is technically illegal under federal law? What’s the difference between an insurer paying directly for marijuana vs. reimbursing a patient? Take a deep dive into how marijuana therapy as a Workers’ Comp issue continues to develop. -
Guest Kathleen Fisher is an accomplished attorney in the field of Workers’ Compensation, but she’s also an active leader of the organization Kids’ Chance, dedicated to supporting the children of workers injured on the job.
Kids’ Chance provides scholarships to the children of injured workers. When a worker is hurt, or even killed, on the job, ripples spread throughout the family. Kids’ Chance is active in all 50 states and has awarded more than 9,300 scholarships. Hear how just a Workers’ Comp claim number can translate into scholarships for children of injured workers. Kids’ Chance offers a streamlined approach, laser focused on filling the gaps a workplace injury can create.
As a claimant’s attorney, you can help connect survivors with resources. Kids’ Chance is another tool in your toolbox as you help clients and families recover. Talk to your clients, ask how you can help, and learn about the services that support not just injured clients, but their families as well.
Mentioned in this episode:
Kids’ Chance
Kids’ Chance of Massachusetts
Kids’ Chance Awareness Week
WooSox Foundation -
Guest Robert “Bob” Wilson is a leader at Work Comp College, created to offer a deeper dive into workplace protections for employees. He’s not a lawyer or an academic type, but he’s long held an interest in the programs designed to protect workers and employers.
The field of helping workers recover from workplace injuries can get better, through training, tech, and, most importantly, through a renewed focus on recovery.
Wilson asks how can we bring the human element back. For attorneys representing both the injured worker and employers – even insurers – it seems we’ve forgotten about people, injured people the families who depend on them. Maybe it’s time to focus on restoring lives, not “processing claims.”
Dive into the world of making injured workers whole. Go beyond “compensation” and focus on “recovery,” getting to the right doctors, the right treatment, and getting back to feeling independent and enjoying meaningful work. Workers’ Comp is there to provide financial resources when workers are injured, but Wilson believes we go beyond “comp” and get to “recovery.” -
To settle or not to settle, often a question. Our guest, Jim Anderson, is a well-known Workers’ Comp attorney and a leader in the field in Mississippi. His input about “settlements” are respected, and he has led the field in helping both sides reach a solution.
The best claim is a closed claim. Is it sometimes better to simply settle a case fairly, to reach an accord, than let it linger and get worse. When a significant injury is involved, going before a judge can be risky. Seeking a settlement that is fair can be a better solution.
But how are settlement values calculated? This is the complicated part. Best case, worst case, and the fair target range. At what point do you make an offer?
Every case is different, and there is no “standard.” By talking with each other, maybe we can understand what the worker needs and what the company is responsible for. This is Workers’ Comp, not tort cases. There is no “pain and suffering” as in a civil case, but that can be hard for workers to understand. And with older workers injured on the job, Medicare eligibility adds a whole new twist. It’s a major factor easily overlooked. A settlement isn’t always just between the insured and the worker, there are other parties to think about. This is an eye-opening episode full of insights into the fine art of settlements. -
We depend on our first responders – firefighters, cops, emergency room workers – every day. They protect us from harm. But what happens when they need our help? Our guest Robert Wisniewski is a Certified Specialist in Workers’ Compensation law with the Arizona State Bar and a military veteran.
Post-traumatic Stress Disorder is a real thing, PTSD. How does this fit into state Workers’ Comp protections? You can’t see these mental scars. And every state is different. Some states don’t offer benefits for these issues.
The military and the Veterans Administration understand the damage we can’t see, but it’s unclear where first responders fit at a state level Remember, every state has its own rules. This is a tough one, but we’re talking about our hometown heroes. There can be a stigma, and sometimes issues don’t get reported until it’s too late, or the chain of command drops the ball.
And unlike falling off a ladder or getting in a car wreck on the job, PTSD injuries may be the result of repeated incidents over a long term. It’s hard to say “when” the mental injury happened, how do you make that claim? Courts are struggling with this. Non-physical stressors may be limited to a single incident, not a working lifetime of stress.
We owe first responders support and care when they need it. This is a confusing and complicated issue. But this is important. -
A reminder that every case is different. Injuries occur in unusual situations that challenge how we think about Workers’ Compensation and how every state and jurisdiction applies the law differently.
The “Skiing Chaperone Case,” is about a teacher who accompanies a school ski club as a chaperone. Is she eligible for Workers’ Comp if injured while skiing? Is this a work injury, or did her volunteer status exclude her? After all, skiing is fun. The answer may surprise you.
A worker on the job outdoors needed to relieve himself. He was standing on a railing over a concrete slab six feet below, unzipped … and he fell and was hurt Unfortunately, he also had an elevated blood-alcohol level and an indication of drug use. So, did the “the personal comfort doctrine” apply, or did intoxication trump his claim?
Plus, a law enforcement officer attending a conference partook of a “hospitality” suite, enjoying alcoholic beverages before falling off a balcony to his death; A truck driver who stepped into boiling water when he was awakened in his truck cabin; And an obese woman who got stuck in her workplace cafeteria booth, breaking a bone.
These are real cases, and real people were hurt. No injury is funny or subject to ridicule. But these cases illustrate the challenges Workers’ Comp attorneys face. Every worker is important and entitled to protections, but many cases are far from clear cut. -
Enjoy a deep dive into the Longshore and Harbor Workers’ Compensation Act with a veteran of the field, guest Norman Cole. The Act is a federal comp provision that covers those who load, unload, and repair ships or work in related fields. It’s a fascinating field that differs from standard state compensation rules. For one, the injured worker doesn’t have to demonstrate employer negligence, as the work is inherently dangerous. In exchange, benefits are relatively defined.
The LHWCA is unusually generous to protect this vital workforce. Six figure awards are not uncommon. Learn what you need to know about this highly specialized field of Workers’ Compensation from a 40-year veteran. If you’re working with an injured dockworker, or are considering practicing in this Workers’ Comp niche, this episode of Workers Comp Matters could be the most valuable 30 minutes you’ll ever spend. -
Guest Rachel Bailit is not an attorney, she’s an actor. So why is she a guest on a show about lawyers and legal issues? As an experienced acting teacher – in addition to an accomplished actor in movies, television, and live stage – Bailit specializes in teaching acting skills to public speakers, politicians, and attorneys.
Telling your story in court is acting. It’s important to use your story, your voice, and your body in concert to create a relationship with your “audience,” whether that’s a jury or a judge. It’s about effective communication.
Law school may prepare you for reading, interpreting, and writing the law. But what about performing? Authenticity and confidence create your courtroom presence. Get beyond explaining your case in legal terms to making your audience “feel” your story.
Learn about “getting off book,” taking your eyes off the printed page and looking into the eyes of the jury or judge. It takes practice. Rehearsal is not just for stage and screen! Understand how to recognize and replace old habits and crutches – be aware of your every word, gesture, and movement. Just like the practice of law, the art of acting requires study and effort. But you might even enjoy it. -
It’s one thing when a shelf stocker slips at work and injures her back. It’s another thing entirely when a professional athlete blows a knee on the football field. Our guest this week is Jonathan Israel, senior partner at the Jacksonville, Florida, law firm RITE where he represents professional athletes in Workers’ Comp cases.
Things get interesting when a case involves an athlete making millions of dollars. Even in a case of “maximum medical improvement” a player at the highest level may never return to the field, and it would be hard to match his or her former income in another line of work. How are benefits calculated? What happens when stars want to see their own doctor rather than the doctors the team is familiar with? Then there are issues of jurisdiction if a player is hurt on a road game and issues regarding a player’s status as a seasonal employee since games aren’t played year-round.
When representing today’s highly paid sports stars, even issues of depositions that might become public or concerns about countersuits for a motion to tax costs become elevated. Dig into a fascinating look into a unique corner of the Workers’ Comp world. -
Workers’ Compensation is primarily designed to provide two benefits: payroll replacement for injured workers and medical payments to providers. But over the years, the process has become increasingly complicated.
Guest Ramona Tanabe is executive vice president and counsel for the Workers’ Compensation Research Institute (WCRI). In this episode, she explains the WCRI’s newly updated report, available now, “Designing Workers’ Compensation Medical Fee Schedules, 2022,” penned by the WCRI’s Olesya Fomenko and Te-Chun Liu.
Medical fee schedules, relative worth or value of medical services, state Workers’ Compensation calculations? Whew. When 50 states have 50 different procedures, it can be hard to follow the numbers.
Tanabe says it’s crucial to know how vastly different state payments are, payment gaps that have appeared, and how fee schedules can affect whether providers will accept a patient covered by Workers’ Comp.
This informative episode explains how rates for patient care are calculated and implemented for clients hurt on the job. - Laat meer zien
