Occupational Diseases at Cruising Altitude

One of my favorite Twitter feeds to follow is that of @Heather_Poole. Ms. Poole is a flight attendant and best-selling author of "Cruising Altitude: Tales of Crashpads, Crew Drama and Crazy Passengers." I enjoy her tweets because in addition to random tweets about travel and life on a commercial airliner, Ms. Poole takes the time to tweet about issues that are important to society. She may be tweeting pictures of her latest travel destination one minute, the next she is tweeting about human trafficking or airline safety or women's rights. Unfortunately, the issue that has taken up most of her tweets lately is that of flight attendants getting sick on the job. What appears to have happened is the uniforms that crew members are required to wear are making flight attendants sick. In workers compensation parlance, we call this an occupational disease.

Everyone is familiar with workers compensation that pays for "specific event" injuries--the ones where a worker slips and falls or has equipment dropped them from above or is involved in a car wreck in a company vehicle. But if you develop a disease from being exposed to a toxin, you can collect workers compensation benefits the same as if you sustained a specific event trauma. So, if you worked as a sandblaster, for instance, and over many years you are breathing in silica and dust particles, or if you are a welder breathing in welding fumes over many years, you may be entitled to compensation for chronic obstructive pulmonary disease (COPD). But these conditions are relatively easy to prove because the of the existence of scientific studies. Most occupational diseases, on the other hand, are exceedingly difficult to prove thanks to the impediments set forth by the court system and the Texas Division of Workers' Compensation.

To recover workers compensation benefits for an occupational disease, it is not enough to show that an injured worker was exposed to a toxin at work--the worker must also prove that the exposure is the cause of the individual's disease. So, for example, a person could work at a feed lot where cow birds are leaving droppings everywhere and if those bird droppings make the worker sick, that worker, working a minimum wage job, will have to be examined at a specialized hospital and tested for an occupational disease. Or another example might be a clean up crew that is contracted to go onto military bases and clean up the lead bullets from the firing range--then a worker gets lead poising. Another example would be at your local hospital where the housekeeping crew comes in to remove soiled linens and change the sheets--only sometimes the crew is accidentally exposed to harmful bacteria. These are all examples our office has encountered. They are also representative of the main problem with occupational disease cases. These cases are difficult to prove and usually occur in individuals the least able to afford to pay for testing.

It would seem that proving that the exposure to a toxin is the cause of a person's disease is common-sense approach to dealing with occupational injuries. But this over-reliance on medical proof eliminates other common sense approaches. The main common sense approach would be looking at other similarly situated employees. For instance, if everyone hired to clean up a firing range suddenly came down with lead poisoning, what are the odds that this didn't happen at work? If a bacterium is often found in hospitals but rarely found outside hospitals, what are the odds that more than one hospital employee sent to clean up a room would contract a disease from a particular bacteria exposure? Isn't there a place for looking at the workers as a class and asking about rates of incidents among them?

When you look through Ms. Poole's twitter feed, you see one account after another account, after another account, of flight attendants having allergic reactions to their uniforms. Their reactions are similar: hives, trouble breathing, swollen glands, sore throats. Under current Texas law, each individual flight attendant has to prove that for each person, they are sick from toxins found in their uniform and not from catching something from a fellow passenger or just getting sick at home. Ms. Poole found that the industry spent one million dollars on a study to determine that their uniforms were not hazardous to flight attendants' health. Think about the unfair bargaining power of the industry and their insurance companies versus each individual flight attendant. The industry has the resources to pay for studies saying there is nothing harmful in the uniforms. And yet, the numbers say that this just isn't true. In Texas, though, junk science beats common sense in a court room--because junk science can be bought if you have a million dollars.

 

Abuse of Drug Testing by Carrier Doctors

As the Olympics draws to a close, it is appropriate to compare the drug-testing done for Olympic athletes versus those done to Texas Workers.

Many states, including Texas, have a provision that creates a rebuttable presumption of intoxication when someone tests positive for drugs or alcohol.

However, a new use of drug testing is gaining in prominence in Texas Workers Compensation law that is an abuse of the workers’ compensation system.

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Lost Wages: Temporary Income Benefits

When you're injured on the job and you file a workers compensation claim, the first set of income benefits that you should receive is called Temporary Income Benefits ("TIBs'). ​Once you miss more than 7 days of work due to your injury, then your entitlement to TIBs will begin. They can last up to 104 weeks.

                                                       

Remember, these income benefits are meant to replace your lost wages from being unable to return to work because of your work-related injury. But often times, you may not begin actually receiving your TIBs because your employer's insurance carrier doesn't believe you were injured on the job. The only way to resolve this problem is to take your matter up with the Texas Department of Insurance-Division of Workers Compensation ("Division"). And until you have resolved your nonpayment of benefits with the Division, you won't receive any of your lost wages.

Hiring legal counsel at this stage in the process is crucial. Without your regular income, bills start to pile up and it's difficult to make ends meet. With the help of an attorney who is board certified in workers compensation law, you'll receive the best legal guidance while moving through the workers compensation's complex system of administrative rules.

   

As the US Supreme Court Makes It Easier for Texas Polluters, New Study Finds Increased Cancer Rates Around Ship Channel

     Today, the United States Supreme Court issued a ruling that sided with the State of Texas in attacking the EPA's ability to place limits on the amounts of mercury, acids, and other toxins may be released from industrial giants. Justice Scalia, writing for the majority, held that the EPA must consider the cost of compliance before deciding whether regulation is appropriate. The ruling is considered a major victory for polluters.

     Almost contemporaneously with the Supreme Court's decision is this study which has found higher than normal cancer rates in eastern Harris County, i.e., the area around the refineries and other industries that make up the Houston Ship Channel. While the study doesn't correlate the polluters to the causes of cancer, it is significant.

     This is all very important for workers compensation because in recent years the Texas Supreme Court has made it difficult, if not impossible, to prove in workers compensation proceedings that an occupational disease like cancer is work related. Thanks to the US Supreme Court, polluters have the green light to go on polluting. Hopefully researchers will put more effort into these studies which show higher incidences of cancer in the areas of pollution. These neighborhoods are filled with the workers of these plants. If they can't get justice before the Division of Workers' Compensation, hopefully justice will come from somewhere. I grew up near there. I have two aunts who live there. Incidentally, both have had cancer. 

Texas Fights over State-Created Firm, Texas Mutual Insurance Company

              In 1991, Texas employers sought policy writers to create polices covering employees injured on the job. To fuel this need, the Texas legislature created the Texas Workers’ Compensation Insurance Fund, the largest writer of workers’ compensation insurance. In 2001, the state changed the fund's name to Texas Mutual Insurance Company (TMIC) but maintained the same goal: to stabilize the state’s workers’ compensation system. Since its creation, TMIC has accomplished just that, consuming 40% of Texas’s workers’ compensation insurance market. Today, TMIC insures over 60,000 employers and their 1.4 million employees. Despite its success, TMIC recently announced its desire to cut ties with the state. The purpose of this blog is to explain some of the pros and cons associated with converting the state fund into a private company.  

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TX DWC Announces September Workers' Compensation Violations

         On October 20, 2014, Texas's Division of Workers’ Compensation (DWC) announced final disciplinary actions against insurance carriers, health care providers, and employers for violating the state's workers' compensation laws. Division of Workers' Compensation Announces Recent Enforcement Action, Tex. Dep’t Ins. (Oct. 20, 2014), available at http://www.tdi.texas.gov/news/2014/dwc---10---20.html.

           Since January 1, 2014, administrative penalties for these violations total $1,774,345, including $1,658,245 against insurance carriers, $65,600 against health care providers, and $1,000 against employers.

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Texas Injury Statistics by Race Go Uncollected

Access the NY Times article here: http://www.nytimes.com/2014/10/10/us/injury-statistics-by-race-go-uncollected.html?_r=0

$97 Million in Workers' Comp Fraud: 2012's Top Cases

               Workers’ compensation fraud occurs when individuals intentionally make false representations to obtain or to deny workers’ comp benefits, which reimburse employees injured on the job.

             Individuals committing workers’ comp fraud carry many faces—employees, employers, and healthcare providers all qualify as potential violators. Employees become violators when seeking benefits by misrepresenting their injuries, employment status, or treatment. Alternatively, employers commit workers comp fraud not to receive benefits, but to avoid responsibility. Employers often seek to avoid responsibility by underreporting employee payrolls and avoiding premiums. Last, health care providers, such as doctors, counselors, and pharmacists, become violators by duplicating bills, billing patients for improper services, and receiving payments from multiple insurance carriers for the same treatment.

2012’s Top 10 Cases

             In 2012, the top ten workers’ comp fraud cases cost America $97,446,500. Below is a short description of each case and its damages:

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Workers' Compensation: Are you Covered?

            Workers’ compensation is a state-regulated insurance program that pays medical expenses and lost wages of employees who are injured at work or suffer from work-related illnesses. Workers’ compensation cases are treated on a case-by-case basis, which means that employees are treated differently based on the nature and severity of their injuries.

              In Texas, the agency responsible for regulating the state’s workers’ compensation system is the Texas Department of Insurance (TDI). Within the TDI exists a smaller division, which carries the sole responsibility of processing and monitoring workers’ compensation claims, called the Division of Workers’ Compensation (DWC).

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Texas Court of Appeals Affirms Injured Employee's LIBS

             A work-related accident can result in a lifelong injury. It can also leave you drowning in medical bills, lost income, and uncertainty about your future. Injured employees facing this situation are not alone—workers’ compensation attorneys will answer your questions and fight to obtain the benefits you deserve.

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The Presumption of Intoxication, continued.

 In a previous post, I gave an overview of the problem with the state of the intoxication defense in workers' compensation law in Texas--that it prevents people from recovery, even when their injury had nothing to do with testing positive for drugs. Again, I want to stress that everyone wants to maintain a drug free workplace.  I have lost two family members in incidents caused by a drunk driver -- a cousin and an uncle -- in separate  events. So, I tend to take a hard view towards injuries caused by intoxication. But that doesn't mean I think insurance carriers should be excused from covering injuries that they have legally contracted to cover. 

Currently, the Division of Workers' Compensation takes the position that the rebuttable presumption shifts the burden of proof in a workers compensation case. This is contrary to the law of rebuttable presumptions found in virtually every other legal context. In fact, it is contrary to the law as set forth by the Texas Supreme Court.

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Filing Suit Against the DWC

I haven't been able to update my blog because I had been sent a cease and desist letter from the DWC informing me that I was in violation of Texas Labor Code Section 419.002(a) because I had used the words "Texas Workers' Comp" in this blog's URL.

Well, today my lawyer filed suit against the DWC in federal court. You can view my petition here:

 

Petition Against DWC

 

I'll keep people posted on the progress as the case develops. 

The Presumption of Intoxication

Recently, I won a workers compensation jury trial on whether or not my client was intoxicated at the time of his injury. Intoxication cases are extremely difficult to win due to both the definition of intoxication and the way that the Division of Workers Compensation decides intoxication cases. There is a strong public policy in favor of maintaining a drug free workplace. However, the Texas Constitution guarantees all persons the right to seek legal remedies for injuries that were not their fault. This is the first of a few posts I plan on making which point out that in our rush to crack down on drugs, the Division and even the courts of the State of Texas have failed to follow the law.

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Illegal Immigration and Workers Compensation

With all the discussion over Arizona's tough stance on undocumented aliens, a renewed interest has been undertaken regarding Texas' stance on these aliens in a workers' compensation context.

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New Maximum and Minimum Weekly Benefit Rates Out

 The new maximum and minimum weekly benefit rates for 2010 have been published. The rates can be found here.

Conflicts of Interest and Confidentiality--The Importance of Hiring a Lawyer

The Office of Injured Employee Counsel was created by the legislature to better assist injured workers in the handling of their workers compensation claims than had been had previously by an ombudsman program administered by the Division of Workers Compensation. When the current workers compensation system was created, ombudsman worked within the Division to assist injured workers. This created problems for insurance carriers as it gave the ombudsmen access to files and information that insurance carrier attorneys might not have access to. In addition, the ombudsman program was overseen by personnel within the Division of Workers Compensation. Because the Division has to maintain impartiality, the ombudsman program suffered because there was no incentive to help injured workers. Excellence in customer service was valued over the results obtained for the claimant.

When the changes were passed by the legislature creating the Office of Injured Employee Counsel, what was lost on the legislature was the fact that the ombudsmen were not advocates, they were there to assist workers. The legislature explicitly stated that the office's purpose was to advocate for workers as a class, but anyone could see that the office would not distinguish between advocating for workers as a class and merely assisting workers individually.

So, with an office that is advocating for workers individually, what do you do when your customers have competing interests? This is exactly the problem confronted by our office recently. We took over a death benefits file for a claimant-beneficiary who had previously used the services of the Office of Injured Employee Counsel. However, while our client was the spouse of the deceased, another claimant emerged claiming to be common-law married to the deceased during a period when our client and the decedent were separated. When these two women were both "assisted" by the Office of Injured Employee Counsel, it was comical to see the notes taken by their office. One ombudsman would write that she had recommended woman number one to get a piece of evidence to establish her claim. Then, a second ombudsman, assisting woman number two would see that notation in the file and recommend that her customer go get some evidence to refute that piece of evidence. And around and around this went--until one of these women came to us for representation.

You see, despite how easy it is to trash lawyers, we do have rules that we must follow regarding conflicts of interest. These rules make sure that a client's secrets and a client's strategies remain confidential. This is one of the reasons why hiring a lawyer is important. Not only is a lawyer trained in the law and knows the law--a lawyer has certain rules to follow that insure that what you tell a lawyer stays private. And when you go to a lawyer, all lawyers have file systems in place to guarantee that you do not hire a lawyer who is already working for the other side on your case. Your lawyer is your advocate, no one else's. And what you tell a lawyer is confidential--the other side doesn't find out until your hearing date what your trial strategy is. Isn't that the way it should be?

 

No Benefit Review Conferences or Contested Case Hearings Today or Tomorrow

 Nothing going on in workers compensation this week. Almost all attorneys, hearing officers and a few insurance adjusters are at the State Bar Advanced Workers Compensation Course in Austin.