Monday, March 21, 2011 Petition to the NC Senate, House and Gov. Perdue
I have been writing for the last month or so about legislation that is soon to be introduced in NC. The bill will try and gut the workers' comp system as we know it in NC. This bill will hurt families in NC and provide nothing short of another big business/big insurance bailout.
Please click here to review and sign a petiton I put together and I encourage you to pass it along to friends and family members. Our collective voice will be heard in Raleigh as we continue to fight against this bad bill. Tuesday, March 01, 2011 We Can Win this Fight
Here is a video of my firend and colleague Senator Doug Berger speaking in January at the Triangle Legislative Breakfast.
Please call or write to your State Representative and the Governor's Office. Let them know that you do not support any reform that will take away the rights of injured workers. Tuesday, March 01, 2011 West End Firefighter Paralyzed...How Workers' Comp "Reform" Could Have Devistating Results
Before beginning, let me say that my thoughts and prayers are with the firends and family members of Don Hughes and all of Ameirca's Finest and Bravest who put their lives on the line for our safety every day.
Last week, Mr. Hughes was working in his capacity as a Volunteer Firefighter for the town of West End, NC when the fire engine he was in overturned and left him paralyzed. It appears that there is a 5% chance he will ever walk again. Thankfully, Mr. Hughes will get workers' compensation benefits. He should receive a weekly check and his medical bills should be covered by the workers' comp insurance carrier holding the policy for West End.
What's troubling is that the current push for "reform" in NC would severely limit benefits for folks like Mr. Hughes and his family. A cap at 500 weeks for benefits with no provision to help those with a catastrophic injury has the potential for devestating losses. Don Hughes is 42 years old. A cap of 500 weeks of benefits would put an end to his getting any help from workers' comp when he is only 51 years old. With a 500 week cap, people with sever injuries like this would then have to look to Social Security, Medicare and Medicaid to get the medical treatment he needs and to get some money to support his family. At this point, the burden shifts from the insurance company that is truly responsible for taking care of the Hughes family to the taxpayers of NC.
Essentially, big business gets another bailout at the expense of the taxpayers, this is absolutely wrong. We need to stand up for our police officers and firefighters to make sure that they do not have their rights gouged so that big business can pocket a few extra bucks.
Please call or write to your State Representative and the Governor's Office. Let them know that you do not support any reform that will take away the rights of injured workers. Wednesday, February 16, 2011 Joining the Fight Against Employer Fraud…A Call for Real Reform in North Carolina Workers Comp Law
This article adapted from a paper and presentation I heard last week. Both were created by my friend and attorney, Leonard Jernigan of the Jernigan Law Firm in Raleigh.
If you were to ask the average person on the street for an example of workers' compensation fraud, you would likely hear a story about an injured worker pretending he or she were hurt, collecting a check and all the while, living a perfectly normal life while receiving a weekly check from a workers' compensation insurance carrier. This story does, of course happen, and I firmly believe that there is zero place for fraud and it should be rooted out, wherever it is found and the person(s) responsible should be held to the full letter of the law. This story is also the one we generally see on television news and in newspapers; it is intriguing and makes for a good story (especially if there are photographs or video). It is not, however, the whole story…
The vast majority of fraud is actually committed by employers in the form of premium fraud. Over the course of many years, millions, if not billions of dollars have been lost to the system through illegal and corrupt practices by employers. They fail to purchase workers' compensation insurance despite a statutory obligation to do so and they misclassify employees either as an independent contractor or other means as will be shown below. The result of these fraudulent schemes is that the good, law abiding employers have been cheated and the crooks have been getting away scot free, but changes have been sweeping the country and the State of North Carolina needs to get on board.
Studies from Wisconsin, Texas and California have shown that employee fraud is less than 1% of all fraud claims filed. Texas Mutual Insurance Company publishes fraud statistics on its website and it shows that the percentages of employee fraud are low. The truly staggering numbers are in the amount of premium fraud discovered, a total of 21.3 Million Dollars from 2007 through 2009 below. Compare that to employee fraud numbers just above 1.3 Million Dollars over the same time frame and it is clear that the real money is in cases of premium fraud. It actually works out that 94% of the money discovered is on the employer side of the coin.
Premium fraud exists in situations where an employer misclassifies members of his or her workforce in order to get a lower rate on an insurance premium. This can be a situation where the employer reports to a workers' compensation carrier that it has 15 employees who are clerical workers when it actually has 15 employees engaged in heavy labor, or reporting 5 workers rather than 105, or by simply ignoring the law and not taking out any workers' compensation insurance. As stated above, another form of fraud is for an employer to classify employees as “independent contractors”, notwithstanding control by the employer over the worker which is the basic rule of thumb when it comes to establishing employer/employee status in North Carolina). If a person is truly an independent contractor, no workers' compensation coverage is required. Therefore, if an employer fraudulently classifies all employees as independent contractors, they avoid the cost of premiums.
When employers commit this fraud, they obtain an advantage over competitors by cheating the government by not paying unemployment, Social Security and Meidcare taxes and if a worker does get hurt on the job, the medical bills are left to the taxpayer when Medicaid, Medicare and Social Security Disability enter the picture. A 2009 report from the Ohio Attorney General’s Office estimated annual costs from worker misclassification to be as much as $100 million for unemployment compensation, over $510 million in workers compensation premiums and nearly $180 million dollars in lost state income tax revenues. The same report went on to estimate that Ohio cities and towns lost more than $100 million in local income tax revenues in 2006 and school districts lost $7.8 million in 2008.
The crooks have been winning this game and it is time for us to fight back. Take a look at these examples.
January 25, 2010—A California judge ordered a staffing firm to pay $20 million in restitution after a plea bargain was reached in a workers' compensation fraud case.
The owners of a roofing company in Orange County, California were arrested on 106 felony counts and charged with $38 million in workers' compensation fraud. Investigators seized $500,000.00 in jewelery, 2 Ferraris, a Bently and a Range Rover from the owners homes.
The owner of a drywall company in Marysville, Washington entered a guilty plea to theft of sales tax and workers' compensation fraud in November 2009, eventually agreeing to pay over $2.1 million in restitution.
The owner of a gutter business in New York State entered a guilty plea to workers' compensation fraud. This scheme involved reporting only 2 employees when he actually had 15. This resulted in avoiding $519,907.00 in workers' compensation premiums.
Just recently, AIG has agreed to pay out $100 million in fines to settle a workers’ compensation lawsuit. Court documents indicate that AIG is accused of taking part in a $1 billion workers compensation under-reporting scheme. A civil lawsuit was filed in 2009 by two firms on behalf of a group of insurance companies, which was then integrated into a class action lawsuit of other insurers that were among those affected by AIG’s conduct in the 1980s and 1990s. North Carolina is set to receive $13.6 million from this settlement.
Across the country, many states have begun to crack down on employer fraud. Task-Forces and the like have been created and given the mission to attack this problem in Colorado, Deleware, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Missouri, Nebraska, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia and Wisconsin. The states of Texas, California and Florida have been very aggressive in their pursuit of stamping out employer fraud. Conspicuously missing from this list is the State of North Carolina. Call your local Representative and the Governor's Office and tell them it is time for North Carolina to crack down on employer premium fraud.
. Wednesday, February 09, 2011 Workers' Compensation Reform Clashes With the Idea of Conservative Politics by Shifting Burden to Taxpayers
“The Constitution is not neutral. It was designed to take the government off the backs of people.”—William O. Douglas, Supreme Court Justice
When he ran for President, Ronald Reagan took this quote and made it the cornerstone of his run to office, promising to get government off the backs of the people. We have entered a new era in North Carolina with Republican majorities in the House and Senate who have promised to reignite this flame and push a Reaganesque agenda of spending cuts and less government through this session.
On the table as well is workers' compensation reform; legislation is being pushed that will set caps on benefits due to injured workers. This reform it is touted as a means to grow business opportunities in North Carolina and lower insurance premiums for business owners…studies from conservative think-tanks seem to show numbers that support the need for this change. These studies are skewed and wrong.
However, if you look at the “end-game”, it is hard to see how such change will work to push the Reagan ideal of "getting the government off the backs of the people. If a cap on benefits to injured workers is passed, we need to start thinking about what will happen to these folks when the cap runs out and they are still medically and physically incapable of getting back to work. It is quite apparent that most of these disabled workers will end up on Social Security, SSI Disability, Medicare, Medicaid or Food Stamps. Meaning the costs insurance companies have been paying for injured workers’ medical care and lost wages will be shifted onto taxpayers. That’s right, the beloved “Joe the Plumber” gets stuck with the bill that should remain the responsibility of the employer and their insurance coverage.
This is not conservative, this is not “getting government off the backs of the people”. Call your Senator and Representative in the North Carolina Legislature and tell them that you do not want to foot this bill. Wednesday, February 09, 2011 NC Legislature to Intoduce Bill that Limits Rights of Injured Workers
It is now clear that the North Carolina Legislature will legislation to slash workers' compensation benefits. The future rights of injured workers all across this great state are now at risk.
Your state representatives are being pressured by big business, insurance company lobbyists, the NC Chamber of Commerce and the National Chamber of Commerce to significantly reduce workers' compensation benefits to injured workers.
One of the changes being pushed is an artificial cap on the number of weeks of weekly benefits an injured worker can receive. This law would stop benefits to an injured worker even if he or she is still disabled and unable to return to any type of work. Another change being considered will force injured workers to take any type of job they can find if they can not return to what is currently called “suitable employment”. Under this new legislation it appears that a person could be compelled into a job that pays less wages, provides less benefits and gives little room to advance. The loss of income resulting from the job change would be capped and benefits would stop even if the person was still physically unable to return to the type of work they were doing before they were injured.
We at the Advocates for Justice urge that you call and write your Representative and Senator and tell them to vote against any new laws that reduce workers' compensation benefits to injured workers. These new laws are likely to pass if legislators do not hear from the people they represent. Tell them not to give in to big business and the insurance company lobbyists who want them to put profit before the rights of injured workers. I would encourage you to ask your family members and friends to also call and write. If you are not able to speak with your representatives when you call, please leave a detailed message outlining your concerns. Click Here to Find Yor Senator and Representative
Through the power of our collective voices, we hope to fight this legislation and fight for the rights of all workers in North Carolina. Friday, September 04, 2009 Workers' Compensation and the Current Health Care DebateI have recently watched the healthcare debate swarm into a frenzy of near violent confrontations at Town Hall Meetings across the nation and have become increasing perplexed by what is transpiring around our great nation and have come to think it time to put something on this page. As my website says, I concentrate my practice in the field of workers' compensation law where I fight employers and insurance companies and try to get my clients benefits they may be entitled to under NC Law.
I am proud and honored to do this work and care deeply for every one of my clients.
the following is a fact pattern that is typical of what I see on a day to day basis in my practice (this is not based on any real client of mine):
Ms. X is 32 years old, single mother of 2, 10th grade education living in Eastern NC working for Employer Y; she's worked there for 10 years and with good work, solid attendance and time on the job she's been able to increase her wages to $13.00 an hour. This is enough to pay the rent and bills and keep her kids fed and clothed. The plant she works at does not offer health care or if they did, she'd have to pay half, which she cannot afford. One day, Ms. X is on the floor at her job, bends down to lift a heavy box and she feels her back pop and experiences serious pain in her low back.
She reports the injury to her supervisor who takes her to the plant nurse. Nurse says, it's just a sprain, take some Advil and go back to work. Ms. X does so and guts it out for another week or so, continuing to seek help from the plant nurse who tells her the same thing over and over. Finally, after continuing to complain, she's sent to an urgent care and Comp. pays for this visit. She goes 2 or 3 more times and the Workers' Comp carrier continues to pay and the Dr. continues to note an injury at work and continued pain and weakness and thinks she has a problem with a disc. Eventually, the Urgent Care doc says Ms. X needs an MRI and a visit with an orthopaedist. He restricts Ms. X to light duty work with lifting, bending restrictions and notes that she needs to take a break every 15 minutes.
Soon after the recommendation for the MRI, the carrier denies Ms. X's claim for benefits for whatever reason and refuses to provide any more medical care for her. The employer says they cannot accomodate the restrictions and Ms X goes out on FMLA, only to be terminated at the end of that period. An MRI will cost $2,000.00 and an ortho wants $500.00 for a consult. No way she can afford this. She tries to get Medicaid but they look at earnings and she made too much when she was working to qualify for benefits. Ms. X is injured, in constant pain, out of a job and has no source of income. She does not have health insurance, cannot qualify for medicaid and is in desperate need for medical care. All Ms. X wants is to get better, get back to work and provide for her family.
How is it that we can say people like this (who I see every single day) do not have a right to get the care they need, do not have the right to get the diagnostic testing and access to a proper medical provider? I fully understand and appreciate the fact that we cannot make a perfect system and we do not live in nor can we create a utopian society, but certainly, we can do better than the system we have now...it's time to stand up, fight through the muckraking, fog, vitriolic hate and spew being propogated by the TV and radio "analysits" and stand up, side by side, regardless of party affiliation to do something right for those in need. If we continue down the insanely divisive path we are on as a nation, God help us all.
Thursday, November 20, 2008 Underage Workers, Repetitive Motion Injuries and Rights of Undocumented Workers
The article below was published in the Raleigh News and Observier on Novemebr 9, 2008 and although it mostly deals with the issue of underage workers, there are a number of issues that relate to workers' compensation as well.
http://www.newsobserver.com/news/story/1287863.html
UNDERAGE WORKERS
The article in the N&O discusses a situaton where children under 18 were working in the plant. Federal and state laws dictate that due to the hazardous nature of the job, people under the age of 18 are not to work on poultry processing lines. In North Carolina, this does not prevent an underage worker from seeking workers' compensation benefits as the NC Workers' Compensation Act applies to minors, whether lawfully or unlawfully employed.
UNDOCUMENTED WORKERS
The NC Workers' Compensation Act also applies to undocumented workers. For the most part, undocumented workers are entitled to the same benefits as any other injured worker; however, there are some exceptions. For example, in terms of providing vocational rehabilitation, an undocumented worker is entitled to received benefits up to the point where he would find suitable employment, but for his undocumented status. As with any legal matter it is advisable to at least consult with an attorney to discuss and be informed about your rights, this is especially true here.
REPETITIVE MOTION INJURIES
The article also discusses that the line Ms. Gayton worked on had workers standing "shoulder to shoulder, making as many as 20,000 cuts a shift." The article also mentioned how Ms. Gayton's hands would burn for hours and that her fingers still hurt even weeks after losing her job.
When a worker is hurt due to repetitive motion at the job, it is usually classified as an "Occupational Disease". Occupational Diseases are specific conditions which are listed in the North Carolina Workers Compensation Act. These conditions include asbestosis, silicosis, synovitis, tenosynovitis, bursitis, and chemical exposure.
There is also a "catch all" provision which defines an "occupational disease" as any disease where your job exposed you to a greater risk of contracting the disease than members of the public generally and that your exposure significantly contributed or was a significant causal factor in the disease’s development. A common "occupational disease" that is included under this provision is carpal tunnel syndrome.
Again, it is important to at least consult with an attorney if you think you have a work related injury. You can also contact the Workers’ Compensation Information Specialists Section of the N.C. Industrial Commission. Dial toll free (800) 688-8349 or call (919) 807-2501 Monday-Friday from 8:00 A.M. to 5:00 P.M., e-mail InfoSpec@ic.nc.gov, or write the:
Workers’ Compensation Information Specialists Section
N.C. Industrial Commission
4333 Mail Service Center
Raleigh, NC 27699-4333
Friday, September 19, 2008 REDA Claims in NCI came accross this article the other day and thought it useful and informative. For the most part, an injured employee cannot sue his/her employer in state court for injuries sustained in the course and scope of employment. Workers' comp. claims are heard before a duputy commissioner from the North Carolina Industrial Commission.
However, if an employee is fired from their job because they filed a workers' comp. claim, they may have a cause of action against the employer unter the Realiatory Employment Discrimination Act (REDA). Unfortunately, as you will see from the article in the link below, this act does not have many teeth and most claims do not yield positive results. I see this as an opportunity for people to contact their state senators and representatives and offer support for legislation that adds some real teeth to this act to protect workers who get fired because they were hurt on the job.
If you want to initiate a REDA claim, you must contact the NC Dept of Labor within 90 days of your termination to allow them to begin an investigation.
http://www.charlotteobserver.com/573/story/191970.html Thursday, August 07, 2008 Arrest for Fraudulent Workers' Compensation PolicyThis story broke this week in Raleigh. If you work in construction, you should ask your employer about where their policy came from and have them make sure you are covered.
http://www.newsobserver.com/news/story/1164818.html |