How many of you have been asked by a doctor to describe your pain on a scale of one to 10? This article describes how science has advanced in gauging pain, but how much further doctors have to go.
Category Archives: Workers’ Compensation
Surprisingly, this photo is not smuggled out of a local factory, although I’ve heard this story before…
From A Series of Unfortunate Events (2017 ).
by Karl Voigt
When do you need an attorney for Workers’ Compensation? For those of you who read my posts on Avvo.com, you know that I am by no means a salesman for lawyers. I often encourage Workers’ Compensation claimants to stick it out, and not enter into a fee agreement with a Workers’ Compensation lawyer until they actually need one. I usually say, “you’ll know when you need one.” Lawyers costs money. The general rule is that, once you go to Worker’s Compensation court with a lawyer, 20% of your checks are going to be paid to that lawyer as a fee.
Some recent experiences have really started to change my opinion. And I’ve been practicing Worker’s Compensation law for 26 years now. I have recently seen some very poor behavior from employers and adjusters right at the beginning of the case that makes me think injured workers should have lawyers working for them from day one.
Usually, right at the inception of a claim, the insurance company doesn’t have a lawyer working on its side. There’s an insurance adjuster who makes the initial decisions. Often bad decisions – for the injured worker.
I had someone contact me recently who had just hurt his low back at work. Okay, it happens; people get hurt and that’s what Worker’s Compensation is designed to address. What supposed to happen after that is the employer reports the injury to its Workers’ Compensation insurer and the injured worker gets medical treatment. If the employee can’t work because of the injury, he gets paid wage loss benefits.
So this gentleman hurt his back, immediately told his employer, who essentially disregarded him. His employer wouldn’t even let him know who his Worker’s Compensation insurance company is.
So, after I spoke with him, I used my own resources to track down the identity of this employer’s insurer. Then I contacted that insurance company, trying to hunt down the identity of the person responsible for handling this work injury claim. “No such claim,” they said. Okay, so the employer pay no heed to the law that says that all work injuries must be reported to the carrier within 24 hours.
My efforts now forced the employer into reporting the claim and a file was opened, a claim number generated, and an adjuster assigned. Under ordinary circumstances, the claimant might have simply gone on working in pain, allowing his employer to string him along.
The worker then discussed his case with the adjuster, who actually told him he was compelled to treat with a doctor chosen essentially by her! This would allow her to “twist the arm” of a doctor who was contracted with the carrier. This doctor, knowing who buttered his bread, would be more inclined to make medical decisions favoring the employer, rather than
Before this conversation with the adjuster, we had a discussion about his medical care. Anyone who’s well-read here or on Avvo.com know about the captive period, where a carrier tries to control the initial medical care given an injured worker. Based on the facts, we had decided that he could treat with his choice of doctor. The employer posted no list of physicians from which to choose, nor had the worker signed the “rights and responsibilities” form requisite for the captive period to be enforceable. Therefore, he could not be forced to treat with a company doctor.
But for our conversation, he could have been railroaded into substandard medical care.
All this in the space of just a few days.
Well, not every case goes like this at its inception. Some go smoothly, as it should. However, I suspect more cases like go this one would have when the worker doesn’t have counsel from the start. So, it certainly can’t hurt to get counsel involved from the very beginning. It can only set you in the right direction.
by Karl Voigt
If marijuana law is a particularly dynamic field of practice, then marijuana law as it pertains to Workers’ Compensation law is even moreso mutable. We have all seen news coverage of individual states trying to get a handle on changing legal standards with respect to marijuana growing, sales, and use. Only now are we beginning to see coverage of new stories that involve using marijuana to treat work injuries.
Two very new cases come to us from Maine, where medical marijuana is legal. Both come from the state’s Workers’ Compensation Board Appellate Division and both serve to advance the use of marijuana to treat injured workers’ chronic pain. In Bourgoin v. Twin Rivers Paper Company, WCB App. Div. No. 16-26 (August 23, 2016) and Noll v. Lepage Bakeries, Inc., WCB App. Div. No. 16-25 (August 23, 2016), the appellate reviewers essentially determined that federal law does not prohibit requiring the workers’ compensation employer and insurer to pay for medical marijuana.
While Maine does prohibit private health insurers from paying for medical marijuana, there is no such prohibition against workers’ compensation insurers paying for that treatment. Therefore, in Maine, so long as it is found “reasonable and proper”, a workers’ compensation insurer can be compelled to pay for medical marijuana.
Pennsylvania’s law is not quite this liberal; the Pennsylvania Worker’s Compensation Act requires that workers’ compensation insurance carriers pay for work-related medical treatment. Because the US Food and Drug Administration (FDA) has never categorized medical marijuana as medical treatment, insurers in Pennsylvania likely cannot be compelled to pay for medical marijuana
Regardless, the Maine employers challenged the judges’ rulings, arguing that federal law prohibits use of marijuana as a controlled substance. Paying for medical marijuana, they insisted, would put them at risk for federal prosecution, as the federal government’s authority to prosecute drug crimes supersedes Maine’s. The appellate Board, referring to the federal Justice Department’s own public statements that interfering with state medical marijuana laws is not one of its enforcement priorities, ruled that there was virtually no such risk of such prosecution.
Both cases ultimately allowed not just for the injured worker to use medical marijuana for treatment of chronic pain, but also compelled the workers’ compensation carrier to pay for that treatment. This is just the most recent ruling in this fledgling area of law. Stay tuned here for updates.
One of the most common questions asked about OSHA Inspections is, “Do I have to let them in my business?” My short answer has always been – No you do not, but it is often advisable that you do so.
It is within your rights as a business owner to require that OSHA inspectors present a Warrant to enter your premises. However, history shows that OSHA is almost always granted a warrant. Furthermore, requiring a warrant usually only serves to alienate you from the inspectors and heighten their suspicion that you are hiding something.
A Magistrate Judge from the Georgia’s Northern District has decided that this is not necessarily an acceptable practice. Magistrate Judge J. Clay Fuller held that OSHA needed to establish “probable cause” before they could obtain an expanded warrant to search a poultry plant. The case arose when OSHA responded to a worker complaint and injury report at a poultry plant. OSHA has an obligation to respond to injury reports and this obligation is expressed to the extent that if an OSHA inspector is driving by a business and sees an ambulance in the parking lot they are expected to stop and at least briefly investigate the reason for the ambulance. Traditionally however, once an OSHA inspector is on site they will begin an inspection that far exceeds the area and scope of the injury or complaint that brought them there.
What does that mean exactly? An example – Business A reports an employee was injured by a garage door that fell and broke the leg of an employee while shooting a commercial. OSHA shows up to investigate but rather than just inspect the area where the accident happens they inspect every corner of the facility, questioning employees who were not present or involved in the reported incident. The OSHA inspector finds that the employer was not at fault for the injury that was reported, but fines the employer $40,000 for violations that are unrelated and which had resulted in no injuries.
The folks at the Mar-Jac Poultry Company objected to exactly this expansive practice. When OSHA arrived they showed the OSHA inspector where the incident occurred, but declined to allow the OSHA inspector to begin an unrestricted inspection of their facility without a warrant.
OSHA applied for a warrant stating that they had a Special Emphasis Program which instructed them to investigate multiple aspects of Poultry related businesses, many of these aspects are unrelated to the reported injury at the company in question. Magistrate Judge Fuller has held that merely having a program targeting a group does not create probable cause to come and inspect that organization. Judge Fuller stated that if OSHA did not have to show probable cause then, “[these inspections could] become tools of harassment.” Judge Fuller acknowledged that the injury which was reported did provide probable cause for OSHA to investigate some aspects of the business which were related to the incident but recommended that a warrant to justify an inspection beyond that point should be denied.
A particularly interesting point is that Judge Fuller stated that a worker complaint was not sufficient justification for an OSHA inspector to receive a warrant to just waltz in and perform a wall to wall and top to bottom inspection. This makes sense as in criminal cases warrants have to be very specifically tailored and generally judges frown on signing warrants for “fishing expeditions.” Yet, OSHA has historically been able to say to a Judge, “Look an employee complained so we need access to inspect every corner of the employer’s facility” and Judges have generally said, “Okay, have at it.”
This decision by Judge Fuller is a major win for Business owners and those concerned with an ever expansive government bureaucracy. However, the case is now before the Federal District Court for the Northern District of Georgia who have the power to overturn Judge Fuller’s decision. We will provide updates as they become available.
If your business has had problems with OSHA or would like to know what you can do to protect yourself from OSHA inspections please contact our office at 888-313-0416.
Jonathan Moore is Prince Law Office’s in-house OSHA Consultant. He served as Manager of Corrective Actions and Director of Corporate Compliance for an Aerospace Manufacturing Company. He now attends law school at the Pennsylvania State University School of Law while working for Prince Law Offices.