North Carolina Workers' Compensation Law Blog

There are a lot of articles and statistics about workplace injuries and workplace deaths. But sometimes these stories are so focused on facts and figures that they miss the human element --behind every statistic there's a person who was hurt on the job and whose life will never be the same because of it.

Author Lisa Cullen tells those stories in her book, "A Job to Die For: Why So Many Americans Are Killed, Injured Or Made Ill At Work And What To Do About It ."

Each year, the workplace extends into nearby communities to claim the lives of 218 bystanders and injure another 68,000.

 7.1 percent of workers are injured or made ill on the job. Every year.

The cost of this carnage and disease tops $155.5 billion annually; five times the cost of AIDS, three times the costs for Alzheimer's, and nearly as much as cancer.

The book is a great reminder of what someone who is hurt at work goes through.

I encourage you to pick up a copy, and you may also want to listen in on an interview Cullen gave on Labor Day about workplace injuries.

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Interesting YouTube discussion involving Leonard Jernigan, Jr., a fellow workers' compensation attorney in North Carolina and chairman of the fraud task force of the Workers' Injury Law and Advocacy Group (WILG).

The next time someone tells you they think most people who are collecting workers' compensation are cheating the system, direct them to this video. It might not be as dramatic as a report by John Stossel, but at least it's accurate.

Click here to see the video on workers' compensation fraud.

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As an attorney who represents injured workers, I get so upset by the widespread public perception that most people who are collecting workers' compensation are "faking it" and somehow defrauding the system.

I know that's simply not true. The overwhelming majority of people who apply for workers' compensation benefits are injured and unable to work because of those injuries. But the media and the insurance companies have done a great job conducting smear campaigns that cast injured workers in a bad light. They've subverted the facts with anecdotes and a few damning videos and created the impression that workers' compensation fraud by employees is rampant. But in reality, only about 1 percent of all workers' compensatioin claims are found to be fraudulent.

However, fraud by employers and insurers is much more prevalent and costs billions of dollars annually. There's a human cost, too. Injured workers who are the victims of workers' compensation fraud often are unable to collect benefits that would make their lives easier and help them get the treatment they need.

Leonard Jernigan Jr., a fellow workers' comp attorney in North Carolna and the chairman of the fraud task force for the Workers Injury Law and Advocacy Group (WILG) has an interesting article in Workers First Watch about the prevalence -- and cost -- of employer and insurance fraud. In it, he provides the straight scoop on workers' compensation fraud.

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Honest workers can sometimes fall prey to dishonest bosses trying to cheat the workers' compensation system, leaving employees vulnerable and without benefits when they're injured on the job.

That's what's happening in New York, where some people working as contractors were charged with cheating the system byforging workers' compensation insurance benefits. At the same time, they were failing to provide insurance coverage for their workers who were injured.

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Injured people deserve fair and just compensation, especially if their injuries prevent them from working. Unfortunately, not everyone plays by the rules.

Willard Leech of Bellingham, Wash., learned that the hard way. He got jail time for illegally collecting workers' compensation for a low-back injury that supposedly prevented him from working.

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Injured workers seeking compensation can breathe a little easier, at least in Ohio.

We’ve followed other workers' compensation stories out of Ohio and this one is significant because the Ohio Supreme reversed an earlier decision.

The court ruled that a teenaged KFC worker who suffered severe injuries after violating workplace rules is nonetheless entitled to workers' compensation.

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It’s a classic case of no good deed goes unpunished.

A Bakersfield, Calif., school worker who hurt his shoulder while helping police capture a suspect at a nearby school had his workers' compensation claim rejected.

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For any state considering workers' compensation reform, California should be a cautionary tale.

After his election, Governor "Arnold" began working to reform the state's WC system, promising that changes would save businesses millions, if not billions, in reduced premiums. But years later, those savings still have not been realized, and the reforms have been devastating for injured workers. The only winners from workers' comp reform in California? The insurance companies.

Recently, an injured worker who had been falsely accused of workers' compensation fraud after filing a claim received some measure of justice.

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Undocumented workers have an enormous impact on the U.S. economy, as these statistics from the Center for American Progress illustrate:

• There are an estimated 7.2 million undocumented immigrants (out of some 12 million undocumented immigrants) who work in the United States. That's 4.9 percent of the civilian labor force.
• Undocumented workers contribute an estimated $7 billion per year to the Social Security Trust Fund through payroll taxes paid on Individual Taxpayer Identification Numbers and fraudulent Social Security numbers.
• The United States would face a shortfall of 2.5 million low-skill workers if undocumented workers were removed from the labor force.

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June Walker, a tax and financial consultant for the self-employed, blogs about the difference between employees and independent contractors -- an important distinction where workers' compensation is concerned.

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The Illinois state government is investigating whether some Illinois construction companies are deliberately misclassifying workers as independent contractors instead of employees.  The  companies are allegedly boosting their profits by failing to withhold taxes and, more seriously, by shirking their responsibility to carry workers compensation coverage.  Employees of these allegedly unscrupulous companies without workers' compensation insurance who are unlucky enough to be injured on the job are the ones who ultimately have to pay for these ill-begotten profits.

This is another example of how employers continue to run roughshod over the workers' comp system, while workers' compensation insurance companies spend billions to convince the public that the blame for rising costs lies on worker malfeasance.

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Today we’re highlighting another case of alleged workers’ compensation fraud committed by an employer, this time in Riverside, Calif..

The owners of  Banning Construction Company (also known as TF Ventures and All Service, Inc),  are charged with an on-going scheme dating back to 2001 to defraud the state.

Carter Lee Pendergrass, 56, his son Joshua, 25, and their business associates, Timothy Cassidy and his wife, Karen, both 51, are each facing dozens of counts of insurance fraud, money laundering and filing false income tax statements, according to court documents. The charges involve collected losses over $6 million which include unpaid payroll taxes and lost money on insurance premiums.

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Found an interesting article on the Hispanic Trending, Latino Marketing & Advertising Blog on the key to understanding the Latino worker to improve communication and productivity at work.

Although a diverse group, Latino culture shares a lot of the same values including unquestioning respect and deference to authority figures such as work supervisors, foremen, business owners and they like, and they won’t disagree or question a person in authority. Latinos, generally, trust mostly family, extended family members and other Latinos and are likely to not trust employers, especially if they are non-Latino. They don’t want to rock the boat and many fear deportation so the potential for underreporting safety issues, injuries and other problems at the workplace is huge.

Distressingly, the blog also reports that fatalities among Latinos have increased 67 percent between 1992 and 2001. Even worse, these grim statistics may underestimate the problem because of underreporting when illegal immigrants are involved.

Indeed, cultural differences and fears of deportation are likely keeping many Latinos from reporting injuries that happen on the job and claiming workers’ compensation benefits that are due them.

I think it’s important to once again emphasize that under the law undocumented workers are entitled to the same benefits if they are injured or killed on the job.

For the full story:

HispanicTrending - http://juantornoe.blogs.com/hispanictrending/

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The bloggers over at Tort DeForm, The Civil Justice Defense Blog, are tackling workers’ comp in their Mythbusters series.

They argue that workers’ compensation laws are inherently ineffective and overly bureaucratic. The rising costs of workers’ compensation benefits are negatively affecting employers while an adversarial system is penalizing employees, placing most of the burden of proof on them for the claim.

The full thrust of the article is that neither employees or their employers are benefiting or being protected by the workers’ compensation system.

The blog also weighs in on workers’ comp fraud, specifically “the fraud of worker fraud.”

According to Tort DeForm,

“In the early 1990’s, insurers and businesses began a misleading media campaign focusing on employee fraud, even though only a tiny percentage of workers – one to two percent – engaged in it. Despite its lack of substance, the campaign caused rights and benefits to be cut in many states, and created an unfair stigma for injured workers.”

Glad to know that other bloggers out there are talking about this deception.

For more on Tort DeForm’s take on WC, visit the blog.

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The Small Business Blog offers some good advice on how employers can cut their workers' compensation insurance costs without eroding benefits.

Among the options:

1. Prevent workplace injuries and illnesses through employee training and reviews of high-risk areas.
2. Shop around for the best insurance policy.
3. Consider self-insurance..

Visit the blog for more on each topic.

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An alarming Federal District Court decision from New Jersey:

A group of wokers who sought workers' compensation benefits after their factory closed were ordered to pay more than $2.2 million to their former employer.

The company levied racketeering charges against the employees and accused them of conspiring to defraud the company by making false injury claims.  The saddest part is that the workers, in part because they may not have understood what was happening, did not contest the lawsuit.  And so, without any contested hearing on the merits of the case, U.S. District Judge Stanley Chesler signed a default judment against the workers. 

Judge Chesler ordered the employees to repay the company's attorney fees, costs, compensatory damages and even workers' compensation awards that had been paid to two former factory workers.

The judgment is alarming, not least because it is a default judgment and the viewpoints and positions of the workers were not heard.  I've got to agree with others workers' rights attorneys who told the Star-Ledger newspaper in New Jersey that the case "signals a 'frightening precedent' that can be used to quell legitimate employee injury claims" and may make attorneys hesitant to take on workers' cases.

The Michigan-based company involved had 12.8 billion in sales last year, and obviously had plenty of money to hire competent attorneys to bring this federal case.  The workers, many of whom had salaries of $16,000 or $17,000 a year, would probably have had trouble paying attorneys to defend them, had they realized the necessity of responding to the suit. 

Read more about the case here.   

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From CarolinaNewswire.com:

"Builders Mutual Insurance Company, a leading regional insurance provider to the home building industry, announced today that the company will distribute $2.8 million in dividends back to eligible workers' compensation policyholders in late spring as a result of lower than expected workers' compensation claims.

Since Builders Mutual was first founded in 1984, the company has returned a dividend to policyholders in 18 out of 22 years. To be eligible for a return, workers' compensation policyholders must have a favorable loss experience. "

To read the entire article, click here.

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A man from El Salvador, who had legal permission to work in the United States, was killed last week after falling to his death on a construction job, according to a report in the Tooele Transcript Bulletin.

Francisco Antonio Alaman-Renderoz, 45, fell to his death while putting in a fireplace wall during construction of a private cabin. According to OSHA regulations, construction workers should use a harness, safety line or railing f they're working at heights over six feet.  Alaman-Renderoz, who was working 25 to 35 feet off the ground , was not wearing any kind of safety equipment when he fell.

This tragic story illustrates the danger that many Hispanic workers face every day when the go to work. Hispanics hold a quarter of all construction jobs, according to the Pew Hispanic Center and that puts them at high risk for on-the-job injuries and even death.

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In Georgia, the family of a Mexican construction worker who was killed on the job are suing for workers' compensation benefits.

Evaristo Enrique Chimal Librado, 43, was killed when a house he was helping to build collapsed on him. He was an undocumented worker from Mexico.

By Georgia law, a maximum workers’ compensation award would provide Librado's family with the greater of two-thirds of Librado’s salary for 400 weeks, or $125,000, according to an article at MainStreetNews.com. It would also provide a $7,500 death benefit.

Even though Librado wasn't in this country legally, he should still be entitled to workers' compensation benefits. But this case is complicated by the fact that Librado worked for a subcontractor. Attorneys for his family are still trying to sort out who his direct employer was and therefore which company is legally responsible for his injuries.

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Dr. Nortin Hadler, a professor of medicine and microbiology/immunology at the University of North Carolina at Chapel Hill, writes an interesting commentary at ABC News about how disability compensation is calculated.

He raises some tough questions, the most compelling of which is "What are you worth?"

The answer to that question is at the crux of most workers' compensation and Social Security disability claims.

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We've written here before about how unscrupulous employers commit more workers' compensation fraud than do greedy employees.

Here's a story about one such case in New Mexico. The owners of a roofing company are charged with providing a bogus documents that said they carried workers' compensation coverage for their business when they really didn't.

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Workers' compensation for undocumented workers is a hot button issue right now.

Stats show that Latino workers are injured on the job at a disproportionate rate.

The real tragedy occurs when an undocumented worker is injured. Many employers try to deny these employees workers' compensation benefits, and they're often successful in doing so.

According to an article from McClatchy Newspapers:

"In one national study, university researchers surveyed 2,660 day laborers, most of them working illegally. One in five said he'd suffered a work injury. Among those who were hurt in the last year, 54 percent said they didn't receive the medical care they needed, and only 6 percent got workers' comp benefits."

But the law is clear.  Undocumented workers, even if they are working in the U.S. illegally are entitled to workers' compensation benefits -- lost wages and medical treatment.

From the same article:

"Employers in at least 20 states, arguing that their employees shouldn't receive injury benefits because they're illegal immigrants, have fought and lost in courts and review boards. Among those employees were a California laborer who hurt his back lifting sacks of coffee, an Arizona auto mechanic who was hit in the eye by flying debris, a Maryland carpenter who cut his hand on a saw, and a North Carolina construction worker who suffered a brain injury when he fell 30 feet onto a concrete floor."

I encourage you to read the entire McClatchy article to learn more about how some workers are being denied benefits to which they are lawfully entitled.

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Senate Democrat Leader John C. Lander III of the South Carolina talks about the shocking freedom that insurance companies have in establishing their premium rates for workers' compensation.  How is it possible that they have gotten away with this gross advantage?

More examples of how the insurance companies have distorted public perception of workers' compensation fraud.

http://scsenatedems.blogspot.com/2007/03/workers-compensation-makes-insurance.html

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An article in the Atlanta Constitution talks about the growing numbers of Hispanic workers suffering disabling injuries. 

Read http://www.ajc.com/metro/content/metro/atlanta/stories/2007/02/24/0225metinjury.html 

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The issues regarding Immigration reform has brought media attention to the plight of undocumented workers and their work conditions. As a result, more and more articles are exposing the unfair treatment and work conditions that undocumented workers are subjected to. 

We have created a new category , "Undocumented workers and Workers' Compensation" and hope to compile more stories and comments about this emerging issue. 

In the past, we have rarely seen WC claims filed by hispanic workers. The number one reason preventing this is fear of deportation of not only themselves, but also their families. We hope that further discussion and exposure will give people confidence to come forth.

In North Carolina, undocumented workers are entitled to workers' compensation.  Many people are unaware of this including insurance adjusters who wrongly deny claims because they feel undocumented workers should not be entitled to such a benefit. 

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A new study  by the Fiscal Policy Institute (FPI) illustrates just how costly employer workers’ compensation fraud can be.

In New York state, the cost is a staggering $1 billion every year – the result of companies that either don’t pay their workers compensation insurance premiums or underpay because they lie about the size of their work force. Honest companies end up paying higher premiums as a result, and injured workers are forced to go without the workers' compensation benefits that they are entitled to.

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This PBS frontline article offers some good stats on wc fraud and supporting references. The same Dateline television show referred to in an earlier blog about WC fraud is referred to in the PBS frontline investigation.

See www.pbs.org/wgbh/pages/frontline/shows/workplace/etc/fraud.html

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A supposedly injured worker is caught on hidden-camera video doing strenuous work in his backyard.

Footage such as this, shown on NBC’s Dateline, makes for compelling television news. But it also perpetuates the myth that workers’ compensation fraud is rampant.

But it’s not.

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The case of Clark v. Wal-Mart has received quite a bit of press. What is so significant about this case?

Essentially, the NC Supreme Court ruling in Sandra Clark's case allow employers to accept liability on a form 60 or 63, without necessarily accepting responsibility for ongoing disability. The Supreme Court decided that the form agreements were simply admissions of compensability, not disability. So, anytime there is a dispute about disability, the employee must come to court and prove that he/she continues to be disabled, i.e. by Dr. testimony and prove that they cannot find a job because of the disability, even if they are still receiving temporaty total disability under a form agreement.

I would say from our standpoint that Clark v. Wal-Mart case has increased litigation and the number of hearings. It will be interesting to observe the rise in litigation especially since this ruling is not even a year old.

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(Greensboro, N.C., July 12, 2006) - Ending an eight-year legal battle that went all the way to the N.C. Supreme Court, the N.C. Industrial Commission has ruled that an elderly Winston-Salem woman who was hurt while working at Wal-Mart is entitled to lifelong disability benefits and medical treatment for her injuries.

Sandra Clark of Winston-Salem began working as a Wal-Mart greeter in July 1998. A few days before Christmas 1998, Clark was asked to stand on a 10-foot ladder and move a decorative sled that was above her head. Clark, who has osteoporosis and was under doctor's orders to avoid heavy lifting, felt a sharp pain in her lower back after moving the sled and was diagnosed with two fractured vertebrae, an injury that prevented her from working.

Clark's employer initially began paying workers' compensation benefits. But in 2000, Wal-Mart applied to the N.C. Industrial Commission to stop payments to Clark, arguing that Clark and her attorneys had the burden of proving that Clark was entitled to continuing disability payments.

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For a list of frequently asked questions, check out the Deuterman Law Group's recently updated FAQ for WC and Social Security Disability.
http://www.deutermanlaw.com/faqs/

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