Top Ten Most Unusual Comp Cases in 2009

 Larson's Workers' Compensation Reporter, the premier name in workers' compensation legal reporters, has issued their list of the top ten most bizarre or unusual workers compensation cases in 2009.  Among the highlights:

An Illinois man was awarded benefits for a displaced fracture through the right femoral neck when he attempted to dislodge a bag of potato chips from a vending machine for a female worker by giving the machine a "shoulder block."

A Missouri court upheld a denial of death benefits to the beneficiaries of a workers comp fraud investigator who was killed in a car wreck on the job. Alcohol and speeding were determined to be the causes.

Its important to remember that these lists are sensational by nature and not indicative of most workers compensation claims. Nevertheless, they do make for interesting reading, especially for those of us in the field of workers' compensation law.

New Study Shows Major Deficiencies in Texas Workers' Compensation

 A new study by the Cambridge, Mass. based Workers Compensation Research Institute (WCRI) shows that Texas has major deficiencies in the amount of benefit payments and the overutilization of insurance carriers on cost containment efforts.

Medical costs per workers’ compensation claim in Texas were stable in 2007, following several years of dramatic decreases. However, in several key areas Texas showed key areas of poor performance in workers compensation, according to a new study by WCRI.

The study, Monitoring the Impact of Reforms in Texas: CompScope™ Benchmarks, 10th Edition, said that afte 2006, Texas medical costs per claim were 19 percent lower than the typical study state for claims with more than seven days of lost time. Fee schedule decreases combined with increased management of medical care by payors through utilization review and other means were behind the decline.

At the same time, though, WCRI reported that medical cost containment expenses per claim continued to grow rapidly in Texas, even after medical costs began to decline. At an average of $2,818, Texas had the highest medical cost containment expenses per claim among the study states in 2007/2008, 37 percent higher than typical. This means that even though the state legislature enacted reforms to contain costs, insurance carriers were aggressively seeking to reduce legitimate costs even further.

The study noted that indemnity benefits per claim rose ten percent in 2007, largely due to a nearly 25 percent increase in the maximum benefit for statutory weekly temporary total disability. But, despite this significant increase in the maximum benefit, the percentage of workers whose benefits were limited by the maximum was 17 percent, more than double the percentage in the typical study state. Thus, Texas lags far behind other states in calculating the maximum benefit paid under workers comp.

The study also found that from 2002 to 2006 indemnity benefits per claim decreased 9 percent overall, largely the result of a decrease in the duration of temporary disability. Since 2002, WCRI said the average duration of temporary disability for injured workers in Texas declined by more than three weeks for claims at an average of 36 months of experience, likely related to the decrease in medical utilization under HB 2600 and payor focus on managing medical care.

In addition, the study said Texas had lower permanent partial disability/lump-sum payments compared to the typical study state.

The Workers Compensation Research Institute is a nonpartisan, not-for-profit membership organization conducting public policy research on workers’ compensation, health care, and disability issues. Its members include employers, insurers, governmental entities, insurance regulators and state administrative agencies in the U.S., Canada, Australia and New Zealand, as well as several state labor organizations.

 

When Is It Against the Law to be Fired?

 Texas is an employment at-will state. What this means is that your employer can fire you at any time for any reason because your employment is at the will of the employer. However, there are situations where your employer cannot fire you. Often times when a workers' compensation claim is filed, the injured employee is worried about his/her job and rightfully so, since the employment is at-will. But here are some things to watch for to use as leverage in keeping your job:

  1. Race/Sex/Age/Religious Discrimination - you cannot be fired for one of these reasons.
  2. Public Whistleblowers - you cannot be retaliated against for blowing the whistle on a public employer.
  3. Refusing to commit a crime.
  4. Jury Service - You cannot be fired for missing work for jury duty.
  5. Subpoena Compliance - You cannot be fired for missing work for obeying a subpoena to appear in court.
  6. Military Duty - You cannot be fired for missing work for military duty.
  7. Voting - You cannot be discriminated against for voting.
  8. Union Membership - You cannot be denied employment based upon union membership.
  9. Because Your Employer has been given a Child Support Withholding Order.
  10. Agricultural Laborer Protections - Agricultural workers cannot be discriminated against for seeking information or working with authorities regarding hazardous chemicals in use.
  11. Handling Hazardous Chemicals - Likewise, anyone who handles chemicals of more than 55 gallons or 500 pounds is protected.
  12. Nursing Home Workers - nursing home employees are protected from reporting abuse and neglect that takes place in the facility.
  13. Health Care Facility Workers  - You are protected from reporting abuse, neglect, illegal, unethical or unprofessional conduct of persons associated with health care facilities.
  14. And finally, you cannot be fired or discriminated against for filing a workers' compensation claim.

If you have been fired and you believe one of these exceptions to the at-will nature of you employment applies to you, then you should seek out a lawyer as soon as possible.

Why Workers Comp is Important

Texas is the only state that doesn't make workers compensation insurance mandatory for at least some employers. This is a shame, because workers' compensation insurance is beneficial to both employees and employers as Sally Spooner, a school teacher, and the Cody School District, her employer, recently found out.

The Cody School District is the local school district in Cody, Wyoming. Recently, the district decided to discontinue providing workers compensation insurance for their employees as the superintendent and school board felt that $175,000.00 in annual premiums was not a good way to save money for the district. They couldn't have been more wrong. One of their teachers, Sally Spooner, slipped and fell and ended up having to have her right let amputated just below the knee after suffering serious injuries. Now, this incident will likely cost the district far in excess of what they would have paid in annual workers' comp premiums.

This incident illustrates the give and take of the workers' compensation system. For employers, workers' compensation insurance protects them from the big money judgments for pain and suffering, loss of future earning capacity, loss of consortium, disfigurement, etc. Typically, workers' compensation claimants recover their medical expenses, lost wages and some kind of future impairment benefit. They downside for the employer is that workers compensation is no-fault insurance. Thus, even if an employee is injured through no fault of the employer, the insurance compensates the claimant. For the claimant, obviously they receive benefits without having to prove fault--and typically those benefits start being paid very quickly versus the length of time it would take if you had to prove negligence in a court of law. However, the injured claimant gives up the right to sue their employer for their employer's negligence in causing the injury. Thus, the injured party cannot recover the big money damages that we often hear about in the news. Thus system serves both parties equally. But more importantly, providing workers' compensation insurance for employees is the right thing to do. Just look at the comments to the hyperlinked article about Ms. Spooner, above, to see what I mean.