Workers Comp Matters

Let's talk about the “exclusive remedy,” what it means, why Workers' Comp matters, and the exceptions. The concept of exclusive remedy is based on the principle that in exchange for care and benefits, a worker injured on the job may surrender some options for additional remedies.  If you're covered by Workers' Comp, the ability to challenge the employer in court for injuries and pain and suffering may be limited. Workers' Comp is the remedy. We are covered by Workers' Compensation because that can be a good thing, but we may give up the right to sue. Ideally, it's a fair deal for workers and employers. “The Great Bargain.” But there are twists and turns. Negligence, bad faith, family medical leave needs, disabilities, “double compensation,” and third-party interests all add to the puzzle. When does an injured worker get the “green light” to seek compensation outside of the exclusive remedy?  And what about non-injury damages like defamation, malicious prosecution, slander, or mental anguish? Or what if a “leased” employee (think temp agencies) is hurt? While the exclusive remedy simplifies the management of workplace injuries in many cases, it's not always as clear as it seems, and it's important to know where the exceptions lurk. The goal is always to make injured workers whole. Every case matters.  If you have thoughts on Workers' Comp law or an idea for a topic or guest you'd like to hear, contact us at JPierce@ppnlaw.com or APierce@ppnlaw.com.  Mentioned in This Episode: Green v. Wyman-Gordon Foley v. Polaroid Longever v. Revere Copper & Brass Inc. Learn more about your ad choices. Visit megaphone.fm/adchoices

These are unprecedented times for the rights of immigrant workers in the United States. The current political climate has thrown a wrench into the Workers' Compensation system when it comes to workers without documentation. Understanding the system can help.    Guest Enrique Flores is the founder of the Flores Law Group in Indianapolis, Indiana, and a leader in immigrant workers' rights. The son of immigrant parents, he says immigrant workers have always sought to live and work unnoticed, “invisible.” But in today's charged political climate, the fear is real.    When an undocumented worker contacts you for legal assistance, understanding the Workers' Comp laws in your state is vital. Times may change, but the law and protections haven't. The law provides benefits for people who are injured at work. What's changed for workers is the importance of living a lawful life. Clients should stay out of legal trouble, ensure their car is legally registered and in working order, and avoid giving anyone a reason to question them.   At the workplace, if immigration services show up (ICE), clients should know to stay calm and carry what are called “red cards” detailing their rights along with the card of an attorney they can call. The law still works for injured workers, no matter their immigration status. For attorneys, a little proactive outreach to the community could go a long way.    If you have thoughts on Workers' Comp law or an idea for a topic or guest you'd like to hear, contact us at JPierce@ppnlaw.com or APierce@ppnlaw.com.  Mentioned in This Episode: Red Card/Tarjeta Rojas Print your own Red Card, Immigrant Legal Resources Center American Immigration Lawyer's Association National Immigrant Justice Association phone (800) 954-0254 National Immigration Law Center Northwest Justice Project Workers' Injury Law & Advocacy Group Learn more about your ad choices. Visit megaphone.fm/adchoices

Hosts Alan and Judson Pierce reflect on nearly two decades of the Workers Comp Matters podcast with an examination of unusual or bizarre claims and cases.  A reminder, while some of these cases may have puzzling or humorous elements on their face, it's never funny when a person is hurt. We may wonder what people were thinking when these incidents happened, but we can learn from each case. For starters, always expect the unexpected. An employee who thought her boss provided gluten-free pizza was actually fed pizza with gluten in it (what followed after her Workers' Comp claim was denied is educational and clever). Or an octogenarian, part-time attorney who slipped and fell when he was summoned from his home office to a workplace office and claimed it was an exception to the “going and coming” rule? How about the “personal comfort doctrine” and the breakfast sandwich incident?  These and other unusual cases spotlight both employee behavior and how Workers' Comp rules vary by state. They may challenge the way you view your own cases. This episode is well worth your time.  If you have thoughts on Workers' Comp law or an idea for a topic or guest you'd like to hear, contact us at JPierce@ppnlaw.com or APierce@ppnlaw.com.  Referenced Links: Thomas A. Robinson blog, WorkCompWriter.com Walter A. Zerofski's Case, Masscases.com Learn more about your ad choices. Visit megaphone.fm/adchoices

Guest Dr. Peter Yeh is an orthopedic surgeon with more than 15 years in medicine treating shoulder, upper arm, and knee issues. The stuff that happens at the job.  When it comes to injured workers, they're not that much different than an injured athlete. In both cases, the things they do can be a big part of their identity. And getting back to work is imperative. It's not just physical, it's mental. We all have different layers of what makes us who we are, and work is a big part of that.  Hear how Yeh learned how injured workers depend on doctors and the Workers' Compensation system to help them cope both mentally and physically and get back to their lives. There's no “cookie cutter” approach, and your clients depend on your understanding, compassion, and expertise.  Medical technology is rapidly evolving. Even the terms you need to know can change. Yeh explains some options that injured workers can explore, especially in cases involving injuries that would have been irreparable just two or three years ago. If you're representing injured clients, it's up to you to stay current and help them understand their options, available treatments, and the mental struggle of getting back to normal.  If you have thoughts on Workers' Comp law or an idea for a topic or guest you'd like to hear, contact us at JPierce@ppnlaw.com or APierce@ppnlaw.com.  Mentioned in This Episode: Previously on Workers' Comp Matters, Claire Muselman, “A New Approach to Workers' Comp: Being Nice?” Learn more about your ad choices. Visit megaphone.fm/adchoices

Being a good lawyer is a lot about great storytelling. Unfortunately, that's often not taught in law school. Facts build the case, but effective storytelling wins the case.  Guest Robert Mattson is an experienced corporate communications leader and coach. But his skills go beyond that. He acts in and writes plays. He is also the founder and principal at Intrigue Communications and Coaching. He helps people not simply communicate but also tell a story.  When you're in front of a jury or arbitrator, you're performing. It's part of our everyday lives. Are you consciously telling the story that will help your client achieve the best outcome?  Facts are vital. No argument there. But having the skills to help your audience understand those facts, embrace them emotionally, and understand what they are hearing is every bit as important. Mattson explains how understanding how stories are told makes you a better communicator. It's more than an art, it's a science. (Plus, he shares the three most important words in storytelling.)  If you have thoughts on Workers' Comp law or an idea for a topic or guest you'd like to hear, contact us at JPierce@ppnlaw.com.  Learn more about your ad choices. Visit megaphone.fm/adchoices

AI may be changing the Workers' Compensation insurance industry, but that doesn't diminish the importance of a personal touch. Guest Michael Kelley leads the HUB International claims adjustment team in New England and explains how bringing cases to a satisfying conclusion for all involved can be as much of an art as a science.  There's room for both automation and technology and face-to-face discussion, understanding the nuances of every situation, and negotiating.  Kelly shares his process and how he puts his 40+ years of experience to work, from soup to nuts. Hear what he considers and how he works with both employers and third-party insurers to reach a settlement that fairly compensates a worker while making sure a claims provider stays in business.  What role will today's emerging AI technology play? Kelley says it can be an excellent tool for efficiency, but nothing will replace an adjuster's wisdom and experience.  If you have thoughts on Workers' Comp law or an idea for a topic or guest you'd like to hear, contact us at JPierce@ppnlaw.com. Learn more about your ad choices. Visit megaphone.fm/adchoices

Guest Michael C. Duff, professor at the St. Louis University School of Law, explores the evolving field of mental health injuries in the Workers' Comp world.  Stress and workplace trauma is real, and recognition of these injuries is developing, but there are still complicating factors. Did workplace stress cause a heart attack, or was there underlying heart damage? What constitutes post-traumatic stress, and at what point did that stress occur on the job?  There's a lot to unpack. Daily on-the-job stress versus something truly unusual at the workplace; cumulative versus traumatic stress; faking versus real injury; causation; and privacy (HIPAA) all factor into a decision regarding compensation. We all know a broken arm when we see it. But understanding a damaged mind can be tricky. First responders, air traffic controllers, and factory workers all face stresses, but not all stress is the same. Hear how jurisdictions differ in their view of psychological injury Workers' Comp claims.  If you have thoughts on Workers' Comp law or an idea for a topic or guest you'd like to hear, contact us at JPierce@ppnlaw.com.  Mentioned in This Episode: Agis v. Howard Johnson Co. Previous Appearance on Workers Comp Matters, “For Every Wrong, A Remedy? When A Workplace Event Harms A Family”  Previous Appearance on Workers Comp Matters, “Presumptions in the Age of Covid-19” Learn more about your ad choices. Visit megaphone.fm/adchoices

Guest Bogdan Savych, a senior policy analyst at the Workers' Compensation Research Institute (WCRI), discusses his new paper, written with David Neumark, entitled “Impact of Attorney Representation on Workers' Compensation Payments.” WCRI studied the impact of attorney representation when it comes to indemnity payments (income replacement benefits) for injured workers in what, on its face, is supposed to be a straightforward Workers' Compensation system. What impact, statistically, does having an attorney represent an injured worker have on payments?  Not surprisingly, Savych's research found that for workers, having an attorney represent them in their claims can result in higher payments, but there is still work to be done. And, as host Alan S. Pierce notes, it's even possible involving an attorney can save the Workers' Comp insurance company money by identifying other parties who are liable for the injury through negligence. But then, what about attorney fees? There are myriad factors to consider, and, as we know, every state is different.  If you're an attorney who represents injured workers in Workers' Compensation claims, or you're otherwise connected to the world of Workers' Comp, consider joining WCRI as a member.   If you have thoughts on Workers' Comp law or an idea for a topic or guest you'd like to hear, contact us at JPierce@ppnlaw.com.  Mentioned in This Episode: “Impact of Attorney Representation on Workers' Compensation Payments,” by Bogdan Savych and David Neumark Free Report: “WCRI Medical Price Index for Workers' Compensation, 16th Edition (MPI-WC)” by Workers' Compensation Research Institute Previously on Workers Comp Matters, “The Attorney's Role in Workers Compensation” Learn more about your ad choices. Visit megaphone.fm/adchoices

Our military and public service veterans deserve our best. Guest Alex Dell is a longtime Workers' Compensation and Veterans Affairs compensation attorney, often representing injured public servants or military veterans. He's also a former Division One hockey referee. In both roles, Dell explains how taking a broad view is crucial.  The key, he says, is to avoid “tunnel vision.” Learn to see issues from multiple angles. Take in the whole picture. In hockey, keep an eye out for penalties behind the play, and when a worker is hurt, especially a military veteran, watch for multiple claims to pursue as you seek to best represent your client.  When we talk about veterans' claims, we're looking at three areas: pension benefits, compensation for injuries, and “DIC” benefits, the dependency and indemnity claims for families who lost a loved one or who have a loved who was disabled. It can get tricky, and there are unscrupulous “representatives” eager to trick potential clients into making payments that are already covered by the compensation programs.  Representing public servants and veterans is nuanced. Some disabilities aren't physical. Post traumatic stress disorder (PTSD) may not be evident at first but can manifest itself later. That's still a real disability, and vets deserve compensation to help them recover. Some veterans may not even know help is available even a decade or more after service. And clients may also not understand a VA “denial” isn't the end of the road. There are alternatives and appeals.  Do you have thoughts on Workers' Comp law or an idea for a topic or guest you'd like to hear? Contact us at JPierce@ppnlaw.com  Mentioned in This Episode: Pro Hac Vice Article, “Presumptive Evidence Of Causation In Workers' Compensation Claims Related To World Trade Center Rescue, Recovery And Cleanup Operations” “Your Intent to File a VA Claim,” U.S. Department of Veterans Affairs “The Michigan Goal,” YouTube Learn more about your ad choices. Visit megaphone.fm/adchoices

In this special episode, co-host Alan Pierce shares his thoughts on an auspicious occasion, celebrating his 50th year practicing Workers' Compensation law. Alan's son and law partner, Judson Pierce, interviews his father.  Fifty years of anything is a long time. Alan passed the bar in 1974 and began practicing Workers' Comp law. He's seen a lot. Incremental changes seem to pass slowly, but over half a century, Alan has had a front row seat to what's become a revolution, from his start as a claims adjuster to attending law school at night to founding his own Workers' Compensation law firm.  Since its introduction more than a century ago, Workers' Comp evolved into a specialized, and highly complex system aimed at making injured workers whole and getting then back on the job while controlling costs, rehabilitating workers, and understanding and managing ever-changing workplace environmental challenges.  Today's “gig economy,” artificial intelligence, the influence of business lobbying, and the decline of union political influence are ongoing issues that will shape Workers' Compensation rules as the system heads into its second century. Hear Alan's perspective on the changes he fears may ultimately harm workers if we don't continue to uphold our long-held moral obligation to protect each other.  Do you have thoughts on Workers' Comp law or an idea for a topic or guest you'd like to hear? Contact us at JPierce@ppnlaw.com  Mentioned in This Episode: Michael Duff, “How the U.S. Supreme Court Deemed the Workers' Compensation Grand Bargain ‘Adequate' Without Defining ‘Adequacy'” Learn more about your ad choices. Visit megaphone.fm/adchoices

How will AI help us help workers injured on the job? What voids will AI help us fill as we work to help people get back to work and life? Treatment authorizations, document delivery, and automation of mundane tasks such as signature acceptance help an injured person get back on the job faster and speed operations for the adjuster. Let's work together.  As guests from digital communications platform Gain Life Tycho Speekenbrink and John Peters explain, claims are complicated. But automation can help speed the process by analyzing how prior cases and even patient locations have worked in similar cases. Today's tech can help both sides eliminate bottlenecks, including routine treatment approvals, medical appointment scheduling, even transportation to and from care. Hear how AI can accelerate and simplify the process. Can AI help adjusters get past routine tasks and learn a little bit about empathy and collaboration, things that work for both the worker and the adjuster?  Workers' Comp is struggling to get past the old “snail mail” and paper files era. Hear how AI can advance reaction time and attract new, younger, talent that has grown up in the digital age. The systems aren't yet perfect, but you don't want to be left behind. Change (for the better) is coming. AI won't replace adjusters and attorneys, but it will help them do their jobs better. Mentioned in This Episode: “AI Sparks New Era In Empathetic Workers' Comp Claim Management,” PropertyCasualty360, by Tycho Speekenbrink and John Peters (free registration required) OpenAI ChatGPT Google Gemini AI Coursera

Guest Claire C. Muselman's recent publication in WorkersCompensation.com encourages adjusters to take a new look at Workers' Compensation's goals. Maybe we should be less skeptical of workers and show empathy. In other words: Be Nice.  We all have biases. Sometimes they get in the way and keep us from caring. From social media to traditional learning to storytelling and anecdotes, how do those biases influence our assumptions when it comes to making workers whole and getting them back on the job after a workplace injury?  In her article, “Empathy's Impact on Workers' Compensation: Elevating Care for Injured Workers,” Muselman writes, “Empathy is the ability to understand and share the feelings of others. In the Workers' Compensation field, it involves recognizing and acknowledging the emotions of injured workers, seeing things from their perspective, and responding with compassion and understanding. Empathy goes beyond sympathy, which is pity or sorrow for someone's misfortune. Instead, empathy involves a deeper connection where we can truly comprehend and relate to another person's emotional experience.”  Wouldn't it be great if we could step away from an adversarial position, stop trying to assign blame, and start thinking about the injured people and their families? It's a new approach but perhaps a better one.

Let's talk about alternative medicine and coverage under Workers' Comp's hodgepodge of rules.  Guest Maya Rashid is a recent graduate of Penn State Law and the winner of the College of Workers' Compensation Lawyers' student writing competition with her article “Revitalizing Recovery: Exploring Workers' Compensation Coverage of Alternative Medicine.” Fighting for clients seeking treatment through alternative medicine under Workers' Comp? Even traditional medicine can get tangled in case law and treatments, but when it comes to alternative medicines, where do you, and your clients, stand? It's a confusing issue, trying to figure out how injured workers can choose their own care and recovery path versus what insurers and jurisdictions determine is “reasonable.” The word “reasonable” varies across jurisdictions. Not to mention the confusion of medical bill coding. If you, and your clients, are confused, you aren't alone.

When workers are recovering from a workplace injury, there are psychosocial factors, mental factors, which can impede the recovery from physical injuries. Things such as a worker's recovery expectations, fear of pushing too hard or performing activities that may restrict the benefits of physical therapy and hamper recovery, or even new negative feeling about their job and perceived injustices over how a supervisor or employer reacted to the injury. Can these “mental” factors prolong recovery and delay a return to productive work?  Guest Vennela Thumula, Ph.D., works at the Workers' Compensation Research Institution – a nonprofit, objective provider of research and analysis – and is the lead author of this year's WCRI report, “Importance of Psychosocial Factors for Physical Therapy Outcomes.” The role of psychosocial factors is increasingly being recognized as a major factor in recovery.  Understanding a clients' mental state – and its impact on recovering – may be just as important as their injury diagnosis when it comes to achieving full compensation and helping them return to a full, productive life. Just because you can't see an injury doesn't mean it isn't there. What you hear on this episode of Workers' Comp Matters may change how you approach each client's individual situation.

This episode opens a new topic for the Workers Comp Matters podcast: repetitive stress injuries, sometimes referred to cumulative trauma, acquired on the job. What happens to someone when someone develops a workplace injury, physical or mental, that can't be traced back to a single, isolated event? Or what if the injury is the result of cumulative trauma developed under multiple employers?  Bodily wear and tear, the result of daily repetitive labor, is real. Think of the brick mason on his knees for decades or the mechanic crawling under vehicles and lifting heavy items, or the carpal tunnel injuries from working at a keyboard week in and week out. These injuries pose challenges when asked for a “date of injury” on a claim form.  For attorneys representing victims of repetitive stress, clarity is key, explaining clearly to the investigator that there is no single date. The injuries were the result of the entire period of labor. Lawyers need to think creatively to fully communicate that the injury is the direct result of the workplace.  We all “break down” as we age. For a successful claim, attorneys must show that the traumatic “wear and tear” injury is a direct result of the workplace, not simply the result of ordinary aging. Mentioned in this Episode: Massachusetts Zerofski Case

The “times they are a changing” in the world of Workers' Compensation, a system developed when the relationship between workers and employers were more clearly defined. Guest Emily Spieler is an accomplished author, former professor, practicing attorney, and government official with a career that spans the space of workers' rights, safety, and compensation.  The 100+ year old system of Workers' Comp has evolved and continues to change and adapt. But the bottom line is we still have a duty to care for injured workers. How do we fit today's challenges into an old model?  There's a growing debate today in both legal and government circles over the definition of worker/employer relationships. The world today is more complex than when compensation rules were developed, and the nature of work has moved beyond old factory and mining jobs. Contract workers, gig employees, and working remotely are shaking up the working world. Who should cover an Uber driver? As unions fade, who helps injured workers understand their rights, file claims, and protects them from retaliation for asking for compensation? Robotics, AI, rush warehouse fulfillment, and even jobs that haven't been invented strain the limits of our current system. This is a fascinating conversation.  Mentioned in this Episode: “(Re)Assessing The Grand Bargain: Compensation For Work Injuries In The United States, 1900-2017,” Emily A. Spieler, Rutgers University Law Review “US Court Rules Uber And Lyft Workers Are Contractors,” BBC “Oklahoma Workers' Comp Opt Out Ruled Unconstitutional,” Insurance Journal

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.

We depend on our first responders – firefighters, cops, emergency room workers – every day. They protect us from harm. But what happens when they need our help? Our guest Robert Wisniewski is a Certified Specialist in Workers' Compensation law with the Arizona State Bar and a military veteran. Post-traumatic Stress Disorder is a real thing, PTSD. How does this fit into state Workers' Comp protections? You can't see these mental scars. And every state is different. Some states don't offer benefits for these issues. The military and the Veterans Administration understand the damage we can't see, but it's unclear where first responders fit at a state level Remember, every state has its own rules. This is a tough one, but we're talking about our hometown heroes. There can be a stigma, and sometimes issues don't get reported until it's too late, or the chain of command drops the ball. And unlike falling off a ladder or getting in a car wreck on the job, PTSD injuries may be the result of repeated incidents over a long term. It's hard to say “when” the mental injury happened, how do you make that claim? Courts are struggling with this. Non-physical stressors may be limited to a single incident, not a working lifetime of stress. We owe first responders support and care when they need it. This is a confusing and complicated issue. But this is important.

A reminder that every case is different. Injuries occur in unusual situations that challenge how we think about Workers' Compensation and how every state and jurisdiction applies the law differently. The “Skiing Chaperone Case,” is about a teacher who accompanies a school ski club as a chaperone. Is she eligible for Workers' Comp if injured while skiing? Is this a work injury, or did her volunteer status exclude her? After all, skiing is fun. The answer may surprise you. A worker on the job outdoors needed to relieve himself. He was standing on a railing over a concrete slab six feet below, unzipped … and he fell and was hurt Unfortunately, he also had an elevated blood-alcohol level and an indication of drug use. So, did the “the personal comfort doctrine” apply, or did intoxication trump his claim? Plus, a law enforcement officer attending a conference partook of a “hospitality” suite, enjoying alcoholic beverages before falling off a balcony to his death; A truck driver who stepped into boiling water when he was awakened in his truck cabin; And an obese woman who got stuck in her workplace cafeteria booth, breaking a bone. These are real cases, and real people were hurt. No injury is funny or subject to ridicule. But these cases illustrate the challenges Workers' Comp attorneys face. Every worker is important and entitled to protections, but many cases are far from clear cut.

Enjoy a deep dive into the Longshore and Harbor Workers' Compensation Act with a veteran of the field, guest Norman Cole. The Act is a federal comp provision that covers those who load, unload, and repair ships or work in related fields. It's a fascinating field that differs from standard state compensation rules. For one, the injured worker doesn't have to demonstrate employer negligence, as the work is inherently dangerous. In exchange, benefits are relatively defined.  The LHWCA is unusually generous to protect this vital workforce. Six figure awards are not uncommon. Learn what you need to know about this highly specialized field of Workers' Compensation from a 40-year veteran. If you're working with an injured dockworker, or are considering practicing in this Workers' Comp niche, this episode of Workers Comp Matters could be the most valuable 30 minutes you'll ever spend.

Guest Rachel Bailit is not an attorney, she's an actor. So why is she a guest on a show about lawyers and legal issues? As an experienced acting teacher – in addition to an accomplished actor in movies, television, and live stage – Bailit specializes in teaching acting skills to public speakers, politicians, and attorneys. Telling your story in court is acting. It's important to use your story, your voice, and your body in concert to create a relationship with your “audience,” whether that's a jury or a judge. It's about effective communication. Law school may prepare you for reading, interpreting, and writing the law. But what about performing? Authenticity and confidence create your courtroom presence. Get beyond explaining your case in legal terms to making your audience “feel” your story. Learn about “getting off book,” taking your eyes off the printed page and looking into the eyes of the jury or judge. It takes practice. Rehearsal is not just for stage and screen! Understand how to recognize and replace old habits and crutches – be aware of your every word, gesture, and movement. Just like the practice of law, the art of acting requires study and effort. But you might even enjoy it.

It's one thing when a shelf stocker slips at work and injures her back. It's another thing entirely when a professional athlete blows a knee on the football field. Our guest this week is Jonathan Israel, senior partner at the Jacksonville, Florida, law firm RITE where he represents professional athletes in Workers' Comp cases. Things get interesting when a case involves an athlete making millions of dollars. Even in a case of “maximum medical improvement” a player at the highest level may never return to the field, and it would be hard to match his or her former income in another line of work. How are benefits calculated? What happens when stars want to see their own doctor rather than the doctors the team is familiar with? Then there are issues of jurisdiction if a player is hurt on a road game and issues regarding a player's status as a seasonal employee since games aren't played year-round. When representing today's highly paid sports stars, even issues of depositions that might become public or concerns about countersuits for a motion to tax costs become elevated. Dig into a fascinating look into a unique corner of the Workers' Comp world.

Workers' Compensation is primarily designed to provide two benefits: payroll replacement for injured workers and medical payments to providers. But over the years, the process has become increasingly complicated. Guest Ramona Tanabe is executive vice president and counsel for the Workers' Compensation Research Institute (WCRI). In this episode, she explains the WCRI's newly updated report, available now, “Designing Workers' Compensation Medical Fee Schedules, 2022,” penned by the WCRI's Olesya Fomenko and Te-Chun Liu. Medical fee schedules, relative worth or value of medical services, state Workers' Compensation calculations? Whew. When 50 states have 50 different procedures, it can be hard to follow the numbers. Tanabe says it's crucial to know how vastly different state payments are, payment gaps that have appeared, and how fee schedules can affect whether providers will accept a patient covered by Workers' Comp. This informative episode explains how rates for patient care are calculated and implemented for clients hurt on the job.

Continuing our discussion of the 50th anniversary of the National Commission on State Workmen's Compensation (as it was called) report. We've come a long way, but … it's complicated. Guest Abbie Hudgens, Administrator of the State of Tennessee Bureau of Workers' Compensation, shares her thoughts on how far we've come with the “great bargain” that balances workers' rights and the need to file a lawsuit for any injury on the job. It's a bit messy to this day. Fifty states, 50 systems. Are higher-paid workers being shortchanged? Should older, rural, or less educated workers receive more than others when they are injured and can't work. And what's the goal of a Workers' Comp system, security for life, or helping workers get back on the job. There remain many questions about disability and impairment, and even partial disability. It's a fragile balance. As we've said, it's complicated. Mentioned in This Episode: “AMA Guides® to the Evaluation of Permanent Impairment: an overview” Workcomp Central

July marks the 50th anniversary of the National Commission on State Workmen's Compensation laws. The system we have in place wasn't always so. Even after the passage of protections for workers, it took years to develop today's standards. In 1972, a federal panel released a comprehensive review of state Workmen's Compensation (as it was then called) laws and guidelines. As Alan explains, several states had to readjust their systems. Our current system is a complex and delicate balance of federal and state oversight, adequate protections, and employer insurance costs. Fifty years after the initial report, is it time to review Workers' Compensation? The workplace has changed, the shift to gig working may be leaving many behind in the “new economy.” On July 11, the U.S. Department of Labor hosts a public roundtable on the topic featuring Alan Pierce.You can register to join online as stakeholders across the workplace safety and protection community discuss the future of Workers' Compensation.

Guest Joanne Doroshow is the founder and executive director of the Center for Justice & Democracy, a national consumer organization dedicated to protecting our civil justice system. She shares a new report from the Center's Emily Gottlieb, “System Letdown: Worker Safety, Harm, and Compensation in the Age of COVID-19.” The report examines the role of industry and the government during the COVID-19 pandemic and the effects on workers including illness, deaths, and worker safety violations. From the start of the pandemic, the Center found businesses mishandled the situation and put front-line workers in peril. But issues didn't end there as government protections, Workers' Comp, and the civil justice systems continued to fail workers. Go beyond data to the tragic personal stories as promised protections were pushed aside. Were the working people who kept the U.S. fed and supplied with goods – often lauded as heroes and essential – intentionally put in harm's way in the name of profit? Who got stuck with the tab, and what did we learn?  

It doesn't matter what country you're from or if you're in the U.S. documented or not. Workplace injuries don't care about immigration status or language abilities. Everyone hurt on the job deserves representation. Arizona-based workers' rights attorneys Robert Wisniewski and Javier Grajeda share their vast experiences representing immigrant workers. Communication is vital, and those with limited English proficiency often need help. Wisniewski shares tips on helping foreign workers communicate the extent of their injuries. American demographics are changing, but our system of protections is for everyone. A competent, certified interpreter is one key. Undocumented workers, and even documented immigrants, may not know they have rights or may be afraid to speak up. Some may not have valid tax ID information or may work under an assumed name. Others may have left the country or been deported after an accident. What are cultural tells? How do other cultures react in a courtroom? How do legal professionals vet interpreters? How can you ask simple, direct questions that may uncover information a case hinges on? These and other tips, in this episode of Workers' Comp Matters.   Special thanks to our sponsor PInow.com, Posh Virtual Receptionists, and MerusCase.

Our guest is law student Simon X. Cao, winner of this year's College of Workers' Compensation Lawyer's John F. Burton Jr. Student Writing Award. His essay, “Fighting The Tide – Overcoming The Rebuttable Presumption of Intoxication In The Age of Marijuana,” examines a common Workers' Comp defense arguing an injured worker was somehow culpable in his own injury by virtue of intoxication. Cao examines to what extent – if any – evidence of prior marijuana consumption can be used against injured workers, as a growing number of states legalize marijuana both for recreation and medical use. The nexus of marijuana and injury compensation is a sticky issue. Evidence of marijuana can be detected in an injured worker's system for weeks after use, unlike alcohol, but it can be present without indicating intoxication. How reliable is testing? How consistent are the rules across states? And what about presumed consent for a drug test after a workplace accident? All interesting topics that could affect your clients. Special thanks to our sponsor PInow.com, Posh Virtual Receptionists, and MerusCase.

Guest Malcolm Crosland is a South Carolina attorney with more than 30 years' experience protecting workers and their rights. In today's gig economy, it's up to Workers' Comp attorneys to guard against employers, lobbyists, and insurance carriers as they angle to classify workers in ways that could exclude them from workplace protections.  Crosland shares how important Workers' Comp attorneys are both in fighting against efforts to weaken protections and in helping injured workers navigate a system that is increasingly adversarial and complex.  Public understanding of Workers' Comp is, for many, out-of-sight-out-of-mind. Until they need it. Workers' Comp attorneys and the Workers Injury Law and Advocacy Group stand at the ramparts ensuring that working people across the country are cared for and supported when a workplace injury occurs. Special thanks to our sponsor PInow.com, Posh Virtual Receptionists, and MerusCase.

The 1972 issuance of the Report of the National Commission on State Workmen's Compensation Laws is one of the watershed moments in modern workers' compensation. As this year marks the 50th anniversary of the report, we felt it was worth revisiting our conversation with John F. Burton, Jr., who served as chairman on that commission. In this episode, originally released in December of 2018, host Alan Pierce talks to John F. Burton, Jr. about his career as a workers' compensation expert. They discuss the history of workers' compensation, outlining its legal evolution through different political and economic eras in the United States. Special thanks to our sponsors, PInow and MerusCase.

Workers' compensation cases take many forms and cover myriad workplace injuries. In this episode, guest Christopher Hug dives into one very specific area, maritime industrial accidents, injury, and compensation.  Hug specializes in maritime industrial cases, often under the Longshore and Harbor Workers' Compensation Act and the very specific Defense Base Act, a World War II creation that covers workers on overseas assignments under contract to the military.  The Defense Base Act is especially interesting in that it covers workers in all fields on military installations, from mechanical workers to teachers or even dentists and can include both physical and emotional disability. Compensation is most often handled through private insurers.  In addition, Hug explains case timelines, representation across jurisdictions, and how lawyers are compensated for their representation.   Special thanks to our sponsors, PInow and MerusCase.