Advertise on podcast: Workers Comp Matters

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.)  

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.