Under current law, an injured worker has the right to what is called a Form 23 Hearing.  This hearing allows an injured worker to get on a docket quickly when there is a dispute regarding reinstatement of benefits.  The matter is heard by a Special Deputy Commissioner by a phone conference and decided upon within 5 business days.  For exampple, an injured worker is back at the job on light duty and aggrivates the injury to the extent that he/she cannot do the work and the carrier does not reinstate disability benefits; another example would be if the carrier simply decides to terminate benefits without a worker having a second opinion.  The worker or his/her attorney can currently file a Form 23 and have a hearing and decision within a few weeks.  SB 174 will put an end to this "fast track"  process and require a full evidentiary hearing.  The problem here is that such a hearing must be docketed; lay testimony must be heard before a Deputy Commissioner; parties are given an additional 90 days to take expert depositions and submit contentions (closing statements); and then the Deputy Commissioner gets another 120 days to make a decision.  After that 210 day period, the matter could be appealed to the Full Commission and even the NC Court of Appeals and beyond.  This process could take months, even years and all the while the worker is left hurt and with no means to have the basic needs to survive. 

In addition, under current law, if a dispute arises relative to the need for medical care, an injured worker can file an Expedited Medical Motion with the NC Industrial Commission.  This Motion can be heard in a matter of days, or if an emergent situation, a matter of hours.  The case is heard by a Deputy Commissioner by a telephone conference with all parties represented and a decision can be made in a matter of minutes or a few days.  Prior to this process, injured workers' had to file motions with the Commission and it could take several months to get approval for basic care such as an MRI, prescriptions and authorization for appointments with a treating physician.  This led to delays in recovery and delays in getting an injured worker back to employment.  Now, the legislature seeks to return NC to this process that delays care, delays access to physicians and delays a return to gainful employment. 

Please read the statute (click above), and call your local representative to offer your opinion on this bill.  You can click here to look up your state representative. 

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. 

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. 

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. 

 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. 

. 

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. 

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. 

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.

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. 

Read full story