January 2011

Hot Button Issues in North Carolina Workers’ Compensation — 2011 (Part II)

January 26, 2011, by Michael A. DeMayo

In Part I on our series on hot button North Carolina workers’ compensation issues for 2011, we discussed how escalating health care costs, information overload online, and confusion over “independent contractor” status have redefined the national and local NC workers’ comp systems. In today’s post, we will examine other burning issues that insurers, analysts, employees, and employers will be debating this calendar year.

1. Confusion over Medicare Set-Aside Arrangements

The so-called Medicare Secondary Payer laws – MSP laws – can be overwhelming, even to people who have familiarity with the laws in theory and practice. A hurt worker can lose key Medicare benefits if he or she fails to deal with his or her MSP issues effectively during a settlement. Indeed, a scary number of experts remain confused about things like the best practices for dealing with Workers’ Compensation Medicare Set-Aside Arrangements (WCMSA).

2. Is workers’ comp litigation helping or hurting?

Detractors of workers’ comp litigation point to the fact that institutions like the Equal Employment Opportunity Commission (EEOC) have ramped up their legal activity thanks to expansions of laws like the Genetic Information Nondiscrimination Act, the ADA, and the Ledbetter Fair Pay Act. With so many legal disputes in the works, some analysts fear a break down in employer-employee trust.

Obviously, litigation for litigation’s sake can clearly damage the economy and degrade trust. But critics of the EEOC should recognize that that group and others like it may merely be responding to longstanding unfair industry practices. It should be possible to work out “win-win” arrangements to simultaneously reduce litigation and improve conditions for both employees and employers. For instance, the strategic use of “social nudges” to prevent people from engaging in bad behavior and encouraging more generous employer-employee relationships could really help.

3. The frequency of workers’ comp claims may be reversing

Starting in the early 90s, the number of claims filed per company payroll began to decline. This reduced caseload helped to counterbalance the increase of medical and rehab costs. But the frequency of claims may be picking up again… adding yet another stressor to the North Carolina workers’ compensation system and other state systems.

4. The obesity and diabetes epidemics

Good data suggest that the increased prevalence of obesity and diabetes (sometimes known as “diabesity”) may be driving up health and medical care costs throughout North Carolina and other states. This epidemic not only creates additional cost control problems but also indirectly impacts the job market itself.

5. Bad advice at the beginning of your research can bias you and make you continue to make poor decisions

Social science findings show that the quality of the resources you initially tap into can have a dramatic influence on your long-term prospects for economic and medical recovery.

To that end, it may be helpful for you or your injured coworker to connect with a North Carolina workers’ compensation law firm that has the resources, track record, and wherewithal to deliver excellent service.

More Web Resources:

Medicare Secondary Payer

Ledbetter Fair Pay Act

Hot Button Issues in North Carolina Workers’ Compensation — 2011 (Part I)

January 24, 2011, by Michael A. DeMayo

From the corridors of the Research Triangle to rural parts of Western NC, North Carolina workers’ compensation specialists have been reviewing crucial trends in the industry and trying to identify the major issues that will shape the system in 2011. In a two-part blog post, we will be exploring pertinent studies and ideas weighing on the minds of physicians, employers, insurers, injured workers, and government policymakers.

1. OSHA bringing down the hammer

OSHA, the Occupational Safety and Health Administration, has stepped up its enforcement activity, according to the National Safety Council. The agency expects to collect $1 million this fiscal year for each of its 10 biggest penalties. A National Safety Council report indicates that, while the organization’s “Top 10” list of major workplace violations will remain the same, “the agency’s message of strong enforcement is clear.”

2. Medical costs continue to escalate: When and how will it all stop?

The National Council on Compensation Insurance (NCCI) has found that workers’ comp claims are skyrocketing – they now represent nearly 60% of all claims. A study in the January 2010 Journal of Occupational & Environmental Medicine reported that “injury types or diagnoses that don’t have clearly defined treatment pathways could easily lead to higher costs.”

Notably, fewer than 4% of all doctors are responsible for nearly three-quarters of workers’ comp costs. Perhaps by targeting those physicians and trying to help them treat patients more cost effectively, the North Carolina’s workers’ compensation system and other state systems could save some money without reducing care quality.

3. Hurt workers finding it harder than ever to get work

The “Great Recession” that stretched from 2008 to 2010 — and the relatively anemic recovery that’s followed — has meant that workers throughout the Atlantic region have found it difficult to earn effectively. That means hurt workers are finding it harder to get new work. This lag in reemployment stretches out temporary total disability benefit periods. This creates a drag on the system and a disincentive for hurt workers to find reemployment.

4. Murky definition of “independent contractors”

When should someone be considered an employee under workers’ comp law, and when should he or she be considered an independent contractor or freelancer? The answer may not be as clear cut as most employers and employees realize. The US Department of Labor, among other institutions, is cracking down. The DOL compelled employers to pay 5,200+ employees $6.5 million in back wages in 2010 – that’s more than double the 2009 numbers.

5. Information overload and confusion among workers’ comp beneficiaries… going WAY up

Despite the proliferation of websites, blogs, and other informational sources about workers’ comp (or maybe because of them), injured claimants are finding themselves more and more overwhelmed and confused by the sheer glut of often contradictory resources.

If you are struggling with a workers’ comp issue – or a friend or a family member is – get a free consultation from a qualified North Carolina workers’ compensation law firm.

More Web Resources:

About the Research Triangle

National Council on Compensation Insurance (NCCI)

AIG Fined $146 Million: Will North Carolina Workers’ Compensation Officials Adopt Deal?

January 19, 2011, by Michael A. DeMayo

On December 23, 2010, the AP reported that American Insurance Group Incorporated (AIG) and its various affiliates accepted a deal to pay approximately $146.5 million in fines, taxes and assessments. Officials from all 50 states – including North Carolina workers’ compensation officials — will have until March 1st to adopt a deal brokered by eight states: Pennsylvania, Indiana, Florida, Massachusetts, New York, Rhode Island, Delaware, and Indiana.

During the recent financial downturn, AIG served as a poster child of corporate insurance excess and mismanagement. The Federal Government and Treasury ultimately had to step in with $182 billion to rescue the company – the largest such bailout in the country’s history. In that context, this hefty $146.5 million settlement may look like a pittance. But what are these fines and assessments for?

Essentially, the company reported its workers’ comp premiums as commercial auto liability and/or general premiums. This subtle bookkeeping tactic allowed AIG to underreport its workers’ comp premiums to the tune of $2.12 billion. The violations occurred over a decade and a half ago. Nevertheless, per the arrangement, AIG only has until March 1st to re-file its statements. If it does not do so or fails to adhere to a 24-month monitoring regimen, the company could face another $150 million in fines.

In the political battle over how best to take care of the nation’s sick and injured workers, big insurance companies, like AIG, often get blackballed as “the enemy.” And while no one would defend poor bookkeeping and management practices – like underreporting workers’ comp premiums to rack up a profit – the Byzantine nature of most states workers’ comp programs should give us pause before we render judgment against the likes of AIG. Could there be a way to cut the Gordian knot? Can we, collectively – insurers, employers, employees, and interested government officials – adopt procedures, processes, and tactics to save money, help workers more, and ensure that businesses don’t get overrun by regulations, paperwork, or excess costs?

Unfortunately, so many participants — in the North Carolina workers’ compensation system and other state systems — seem so bent on blaming or punishing their “enemies” that we’ve collectively failed to give enough attention to win-win-win solutions. Strategies along those lines might include:

• Adopt better information processing and sharing throughout organizations, including government bureaucracies.
• Install better productivity rules, such as Parkinson’s Law and the Pareto principle (a.k.a the 80-20 rule)
• Ensure better ergonomic practices at work
• Make sure that employees take regular breaks to avoid fatigue
• Limit the availability of sugary processed foods in office vending machines and at grocery stores that service employees and employers.

Getting away from the abstract and back to a more practical discussion… if you or a relative or someone you care about has come down with an occupational illness or disease, a North Carolina workers’ compensation law firm can provide much needed guidance and strategic assistance.

More Web Resources:

AIG to pay $146M over workers compensation lawsuit

AIG Agrees to $100 Million Settlement in Probe

Getting Off North Carolina Workers’ Compensation and Getting Back To Work: Crucial Tips

January 17, 2011, by Michael A. DeMayo

Injured or sick workers who are forced to rely on North Carolina workers’ compensation benefits to pay for medical care, surgical bills, and replacement wages often spend a tremendous amount of energy battling their employers and insurance companies to get fair payment and appropriate treatment. Simultaneously, they must reconfigure their family budgets, repurpose their careers, and manage various medical costs, drugs, and procedures.

If you or someone you care about has been swamped by this kind of chaos, you likely empathize with how difficult it can be to “right one’s ship.” Moreover, aiming merely for a return to the status quo before you got hurt/sick is kind of dispiriting. You would much rather aim for something better than what you had before you got sick or injured. But is striving for greatness really possible when you must confront a gauntlet of face pesky insurance rules and medication side effects?

This essay attempts to rekindle your hope that a better life is possible – not just a return to “normal” but actually an elevation to a better state of mind, work, life, and financial possibilities.

First things first, it’s important to accept precisely where you are now in your life, financially, physically, and psychologically. “Accepting” doesn’t necessarily mean agreeing that this should be your ultimate reality – it simply means acknowledging what’s true now. One good method to clear your head is to use the productivity system developed by best-selling author David Allen. In his book Getting Things Done (GTD), Allen recommends that individuals make a total and comprehensive inventory of “open loops” — anything in your life that’s bothering you or that has a grasp on your attention in any way. Once you have everything out of your head and onto a written form – a Microsoft Word document will do – then it becomes infinitely easier to process this information and organize what to do with it next.

Another powerful method to help you deal with your North Carolina workers’ compensation issues – or any other problems in your life – is to spend some time envisioning “best case” scenarios. Imagine yourself in the future from a place of great success. What does your life look like? How do you feel? Where do you work? What’s happened to your injuries? How have you dealt with your insurer and/or employer? How have you managed the anger, confusion, and overwhelm about the accident? Once you have a vision of your success, it becomes a lot easier for you to figure out how to get there.

This may sound like a lot of homework – and it certainly is — but it’s also empowering work. When you’ve been knocked off your game by an injury or a workplace accident or illness, it becomes all too easy to mope around in self pity, confusion, and helplessness. You can go numb to your actual life and ignore potential useful advice. These kinds of written exercises – getting stuff out of your head onto an objective format for easy review and envisioning ultimate success without prejudging your vision – can make an enormous difference not just in terms of your actual on the ground success but also in terms of your psychological state.

On a more practical note, if you are struggling to deal with an insurer or an employer or a confusing series of forms, don’t struggle alone. Get help from a responsive and compassionate North Carolina workers’ compensation law firm right now.

More Web Resouces:

Getting Things Done

Power of Intention

Hospital Worker on North Carolina Workers’ Compensation Won’t Get Job Back

January 11, 2011, by Michael A. DeMayo

Last Wednesday, the North Carolina Personnel Commission ruled that it could not reinstate former Cherry Hospital employee O’Tonious Raynor to his job, marking a setback for a man who went through a long and drawn out process to collect North Carolina workers’ compensation benefits for eye injuries he sustained in a fight with a patient.

Raynor got into a fight with a schizophrenic patient in early March 2010. 55 year-old Bernard Freeman had been smoking when he wasn’t supposed to. Raynor interfered, and Freeman snapped and punched Raynor in the face, seriously hurting his eye. Raynor then pinned the patient down against some furniture and stood on his broken hand. Although the initial fight happened in a common area under surveillance, Raynor then wrestled Freeman out of view of the cameras into a nearby bedroom. Raynor later confessed: “I didn’t intend to hurt the patient. I felt like I was in danger, and I did the best I could under the circumstances…he told me “when I get up, I am going to kill you.””

The North Carolina Department of Justice examined the case against Raynor. No charges were filed. A judge agreed that Raynor used excessive force, but he also argued that the hospital could have simply disciplined him instead of firing him outright.

As this case illustrates, North Carolina workers’ compensation situations can get quite complicated and even ethically tricky. If a worker causes his own injury through carelessness (even partially), he may find it difficult to collect money for medical bills, surgeries, back pay, and lost wages. For instance, say you and some co-workers goofed around at a construction site. You then slipped on some tar, twisted your knee, and tore a ligament. Your employer might argue that your goofing around caused (or exacerbated) the injury and thus you should not be entitled to benefits or should be entitled only to limited benefits.

To clarify your rights and responsibilities, it’s important to get excellent legal guidance. Any on-the-record admissions you make – even seemingly minor admissions – can hamper your chance to get the money you need to support your family and recover. If an insurance company or employer has unfairly denied benefits to you, you can take legal steps to compel them to make good. A North Carolina workers’ compensation law firm can provide a free and effective (and confidential) consultation about your injuries and advise you about the best next steps to take.

More Web Resources:

O’Tonious Raynor’s story

Cherry Hospital

North Carolina Workers' Compensation Analysts Review NY’s $120 Million Settlement

January 9, 2011, by Michael A. DeMayo

Before leaving his post as Attorney General and ascending to the governorship of New York state, Andrew Cuomo finalized an 11th hour $120 million workers’ comp settlement. The arrangement is fraught with complications and has many North Carolina workers’ compensation experts scratching their heads.

The gist of the settlement

Four insurance companies — Zurich Financial Services of Switzerland, ACE Group of New York, CNA Insurance of Chicago and Pennsylvania Manufacturers — worked out a long-brewing dispute with the state of New York. In 2000, NY lawmakers created two different rules to govern how surcharges would be assessed and collected. These rules in some ways contradicted each other. This led some insurance companies to collect too much and some insurers to collect not enough surcharges from customers. In 2009 and 2010, New York’s Workers’ Comp Law got amended to stop this overcharging process. But this left NY officials with the onerous task of then figuring out how much money to collect from overcharging insurance companies and how precisely to get that money.

Now that the insurers have agreed to divulge their excess funds, this story should die down. Cuomo admitted as much last Friday: “these four groups of insurance companies have done the responsible thing by agreeing to resolve their disputes with the state.”

Obviously, North Carolina workers’ compensation disputes can also get quite complicated – and the byzantine rules and regulations that insurance companies and other policy analysts must comb through can give even the most experienced experts serious headaches.

But a complicated, multi-million dollar brouhaha over insurance minutiae may not exactly be relevant to you if you suffer from a chronic lower back problem or occupational disease you got at a Raleigh factory job or Research Triangle bank job.

If you’ve suffered an injury or a sickness at work, and you are confused about your rights or about how to collect money from an employer from an insurance company, discuss your needs, priorities, and concerns with a qualified North Carolina workers’ compensation law firm. Informed with good information and strategic guidance, you can heal more quickly from your injuries and get back to the business of bringing in money and supporting your family.

More Web Resources

Andrew Cuomo

NY’s $120 million workers’ comp settlement

North Carolina Workers’ Compensation Pundits Ponder Whether Illinois Awards Constitute Fairness or Fraud

January 6, 2011, by Michael A. DeMayo

Many in the North Carolina workers’ compensation community have spent some serious time looking over the $1.5 million settlement award handed out to prison guards at Menard Correctional Center in Illinois. In case you haven’t been following the news, this massive case has drawn attention throughout the nation not just because of its size but also because it represents (to some pundits) an example of systematic waste.

55 workers – most of them guards – will collect between $22,000 and $120,000 to pay for damages stemming from chronic hand, wrist, and elbow injuries they sustained while locking and unlocking manual crank wheels and keys. Approximately 10% of guards at Menard experienced serious repetitive trauma. The prison’s warden, 35 year-old David Rednour, will collect more than $75,000 not because of injuries he sustained at the correctional center but because of injuries he sustained at an earlier job working for the IL police department.

The $1.5 million settlement – and, in particular, Mr. Rednour’s settlement – has angered many local Illinoisans, including State Senator Kyle McCarter, who responded to the news with this passionate statement: “The abuses and the fraud in the workers’ compensation system in Illinois have gotten out of control and are costing tax payers more than they ever will know… we have to take a strong stand against this while helping out workers who are legitimately hurt on the job. The fraud and abuse has got to go. It’s driving business out of the state.”

Rhetorical opponents of the Senator in Illinois (and here in the North Carolina workers’ compensation community) would likely retort something to the effect of: “Yes, sure: abuse and fraud corrupt the system and generate problems for everyone touched by it. That said, is there a better way to deal with the costly and painful occupational injuries that these workers are stuck with? And if so, what is it?”

Unfortunately, debates over workers’ compensation often devolve into essentially political tantrums. One side says the workers’ comp system is bloated and corrupt. The other side says that benefits are essentially always appropriate.

Instead of this unproductive conversation, it might help to look for ways to shortcut problems. For instance, what if the injured correctional facility workers got better treatment for their repetitive stress problems? A growing body of evidence suggests that repetitive stress injuries are not merely “local” injuries. Rather, they involve chronic distortions of muscle, soft tissue, bones and ligaments. Therefore, they should be treated not necessarily with an array of modalities, such as strength training, trigger point massage, and enhanced body awareness.

The point here is that, rather than see cases like the Menard case devolve into shouting matches, let’s quit the blame game and get on to the business of drafting creative and results-oriented solutions.

To that end, if you or someone you care about has been struggling with a benefits-related issue, get immediate and confidential help from a top level North Carolina workers’ compensation law firm.

More Web Resources:

Menard Correctional Center

Debate over Menard Compensation

Good News for Principal Shot in the Face: He Will Get North Carolina Workers’ Compensation Benefits After All

January 4, 2011, by Michael A. DeMayo

Last year, 38 year-old James Hunt, a former Principal for Fairmont Middle School in Southeastern NC, got shot in the face with a shot gun while driving to school. Fortunately, Hunt survived (albeit with ongoing pain and chronic injuries), but his North Carolina workers’ compensation battle had just begun…

The Robeson County School System initially refused to pay his benefits — which included $60,000 a year and medical expenses — in spite of the fact that Hunt had been driving to school when he got shot and that the shooter almost certainly committed the attack in response to Hunt’s attempts to rid his school of gang violence. An official from the North Carolina Industrial Commission, Philip Baddour III, said that the shooting attack almost certainly “arose out of [Hunt’s] employment because the shooting was more likely than not related to his anti-gang activities as school Principal.” Furthermore, Baddour said that Hunt had been talking on a cell phone issued by the district about Middle School business. Hunt remains disconcerted by the attempt on his life, and the mystery shooting prompted Hunt’s supporters to create the website www.whoshotprincipalhunt.com to ferret out the truth.

Per the terms of his North Carolina workers’ compensation agreement, Hunt will get his wages compensated as well as his medical/surgical bills. In a statement, Hunt said that: “it’s just unfortunate we had to take this route to get the help I need… I really felt like my school system, my employer, let me down on this. They left me hanging.”

If you or someone you care about has similarly faced frustrating issues collecting benefits or dealing with an insurance company, get good help from a qualified and compassionate North Carolina workers’ compensation law firm. You likely have many rights and resources available that can help you resolve your troubles with minimal stress and maximal efficacy.

More Web Resources:


Ex-principal wins workers comp; Sues school system over 2009 shooting