Current events of interest...

When Can the Insurer Stop My Weekly Disability Check? Vermont employees disabled from a work injury recieve 2/3rds of their pay as long as they are still recovering from the injury. The law allows the insurer to stop payments when the injury stops getting better (called "medical end" or "maximum medical improvement") Even if the employee has not been able to return to work, the weekly checks can stop under Vermont law if the insurer succeeds in showing the employee is no longer medically improving. However, the insurers too often jump the gun! They hire "independent" doctors and they use them to argue the employee has already reached maximum medical improvement. Unless the employee is aware of what the insurer must prove, he/she won't know how to keep the insurer from getting away with unfair termination. In a case this week, we showed that the insurer's "independent" doctor concluded the client was at maximum improvement from only some major aspects of the work injury. We showed the insurer's doctor, however, failed to declare the client at maximum improvement for all injuries. The key is to (1) know what the insurer must prove, and (2) see if the evidence offered by the insurer is reasonable support for its position, and (3) very aggresssivley and quickly challenge that evidence in the form of an objection and request the Department of Labor reject the insurer's position. Our client would have lost a weekly disability check if we had not carefully read the insurer's "independent" doctor's report and found several flaws. We successfully objected to the insurer's attempt to stop disability checks. As a result, our client is spared an unfair and untimley financial crisis. She continues to have her rightful entitlement to ongoing workers' compensation weekly payments. Part of our objection. later presented in oral argument during a conference with the Department of Labor, was as follows: "Julie Charonko, Specialist II Vermont Department of Labor P. O. Box 488 Montpelier, VT 05601-0488 Dear Ms. Charonko: Please let this serve as the Employee’s OBJECTION to the Form 27 filed by [employer/insurer name withheld]. The Form 27 is signed and dated March 10th and seeks to discontinue benefits effective March 22nd . The reasons stated are that the Employee has allegedly reached medical end result. The sole support offered is a report dated February 11, 2010 by Dr. Boucher. The Form 27 arrived at this office on March 16th. I have reviewed it today. I provide the following bases for the Employee’s OBJECTION and request that the Form 27 be REJECTED. Dr. Boucher states in no uncertain terms that [ client name withheld] is not at medical end result for all of her work related injuries. The employer/insurer has filed a Form 27, therefore, which fails to be reasonably supported and must be rejected. Dr. Boucher states in his report: “She has not reached MMI for her right hip condition, … .” (Report at Page 9) The right hip condition is work-related: “Based upon the available information, to a reasonable degree of medical certainty, there is a causal relationship between the examinee’s current bilateral knee and right hip complaints and the reported injury of March 22, 2006.” (Report at Page 9) Dr. Boucher recommends additional treatment for the right hip beyond the currently noted treatment described. Dr. Boucher recommends the right hip also get osteopathic or chiropractic treatment. (Report at Page 10) In addition, Dr. Boucher’s report has forgotten to assess the status of [ client name withheld] work related fracture injury and surgery to the left ankle: left bi-malleolar fracture, status post open reduction internal fixation injury. Dr. Boucher previously confirmed in his June 12, 2007 report that the left ankle fracture is work related and that “…there is a causal relationship between the examinee’s current bilateral knee and left ankle complaints and the reported work injury of March 22, 2006.” In his February 11, 2010 report, however, he has forgotten to assess the status, whether the left ankle fracture and symptoms and restrictions are at medical end result. (For this reason also the employer should not be asking the employee to accept a permanent impairment rating based only on some portions of the work related injuries, at a time when Dr. Boucher’s report states the employee is not at medical end and the report fails to account for the open reduction internal fixation surgical repair of the left ankle, work-related.) For all of these reasons, and most obviously because Dr. Boucher has stated – in black and white – at page 9 of his report that the right hip condition is work-related and that “she has not reached MMI for her right hip condition, …” the Form 27 must be rejected as not reasonably supported. Very truly yours, Charles L. Powell, Esq."

Federal Statistics on Work Injuries and Fatalities The Bureau of Labor Statistics of the U.S. Department of Labor reports national statistical data on fatal and non-fatal injuries at workplaces. Go to: http://www.bls.gov/iif/ Reported injuries and fatalities continue on a "downward" trend. However, see the Government Accounting Office report (next article below) which shows the statistics are the result of less reporting and not less injury or fatality. Nonfatal injuries and illnesses, private industry Total recordable cases: 3,696,100 in 2008 Cases involving days away from work: 1,078,100 in 2008 Cases involving sprains, strains, tears: 416,620 in 2008 Cases involving injuries to the back: 222,290 in 2008 Cases involving falls: 234,840 in 2008 Fatal work-related injuries Total fatalities (all sectors): 5,071(p) in 2008 Total fatalities (private industry): 4,549(p) in 2008 Highway incidents (private industry): 989(p) in 2008 Falls (private industry): 641(p) in 2008 Homicides (private industry): 444(p) in 2008      Bureau of Labor -- statistical data

Statistics Show Fear of Reporting Injuries, Not Safer Work Conditions A Government Accounting Office study showed widespread failure to report work injuries. Employers fear increased insurance rates if an injury is reported. Employees fear retaliation if they report a work injury. The Government Accounting Office ("G.A.O.") study challenges the appearance of increasing safe work conditions, as suggested by the Bureau of Labor and Industry. According to a New York Times summary: "The report, by the G.A.O., the auditing arm of Congress, said many employers did not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts. The report also said workers did not report job-related injuries because they feared being fired or disciplined and worried that their co-workers might lose rewards, like bonuses or steak dinners, as part of safety-based incentive programs. ... The accountability office said that 53 percent of health practitioners had reported experiencing pressure from company officials to play down injuries or illnesses, and that 47 percent had reported experiencing this pressure from workers. “This report confirms that when it comes to the documenting of workplace injuries, we can’t just take employers at their word,” said Senator Patty Murray, Democrat of Washington and chairwoman of the Subcommittee on Employment and Workplace Safety. “The system, to this point, has been all too easy to game.” According to the G.A.O. report, 67 percent of the 1,187 occupational health practitioners surveyed had reported observing worker fear of disciplinary action for reporting an injury or illness, and 46 percent said this fear had some impact on the accuracy of employers’ injury and illness records." http://www.nytimes.com/2009/11/17/us/17osha.html?_r=1&scp=1&sq=unreported%20work%20injuries&st=cse