Workers Comp Matters

It’s been 25 years since 9/11. In this special episode, we revisit our conversation with Kenneth Feinberg, the architect of the federal compensation plan for victims and their families. As he asks in his book on the subject, “what’s life worth?”

Feinberg is an internationally known attorney who was appointed by President George W. Bush to administer the federal fund established to aid those injured in the terrorist attacks and to support the families of those who lost their lives. 

We reflect on Feinberg’s Herculean efforts and how his team grappled with a national open wound and struggled to put a monetary value on thousands of lives.

In today’s often divisive political climate, a brutal period 25 years ago reminds us of a time when our nation came together as one. If any episode of Workers’ Comp Matters bears a second listen, this is the one. Everyone working with injured workers and their families can take a lesson from Feinberg’s extraordinary challenge. 

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected] or [email protected].

Mentioned in This Episode:

“Worth,” a Netflix film on Ken Feinberg’s work, trailer

“What Is Life Worth? The Unprecedented Effort to Compensate the Victims of 9/11,” by Kenneth R. Feinberg

Let’s go way down south to Alabama. As we know, Workers’ Compensation systems can vary from state to state. In this episode, we’ll explore the Alabama system with Birmingham-based Workers’ Comp attorney David Nomberg, a partner in the Nomberg Law Firm. 

In Alabama, the system operates uniquely as the only state without an administrative Workers’ Comp system to settle differences. If there is a dispute or denied claim, the case goes directly to the Circuit Court, the same judges that would hear other civil cases. This means attorneys may have the extra duty of explaining the issue to judges who may not be familiar with Workers’ Comp.

Nomberg shares insights into the importance of communication. Not only with judges, but also with clients who may be surfing the internet and finding information from law offices in other states, where different laws apply.

But as Americans, we all share some similarities, too. We all want to help workers injured on the job become whole and live their best lives. Nomberg sees some nationwide areas where we can all do better, including caring for an aging workforce, mental health and PTSD, heat-related claims, and changes in technology. Jump in for this fascinating dive into the complicated web of Workers’ Compensation in an ever-changing environment.

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected] or [email protected].

Mentioned in This Episode:

Workers’ Injury Law and Advocacy Group

Previously on Workers’ Comp Matters, “’A Patriotic Obligation’: Kenneth Feinberg and the 9/11 Fund,” with guest Kenneth Feinberg

“Worth,” trailer YouTube

“The Looming Tower,” trailer YouTube

Workers’ Compensation Research Institute (WCRI)

Let’s talk about work-related joint injuries and replacements. Sebastian Negrusa, Ph.D., joins Judson and Alan to share the Workers’ Compensation Research Institute’s (WCRI) new report, “Recent Trends in Joint Replacement Among Workers’ Compensation Claims.” 

While back injuries usually come to mind for workplace injuries, joint injuries, and subsequent replacements, are becoming more common. Are you up to speed on this trend? Shoulder, hip, and knee replacements are important parts of making workers whole and getting them back to their jobs and their lives.

 How do you prove a workplace-related joint injury when someone has worked at the same job for decades? What’s work-related, what’s just a function of natural aging? What if the workplace only aggravated a naturally occurring degeneration? It’s complicated, but all workers deserve to be treated fairly, and all workplaces should be safe.

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected] or [email protected].

Mentioned in This Episode:

“Recent Trends in Joint Replacement Among Workers’ Compensation Claims,” WCRI, By Dongchun Wang, Vennela Thumula, Randall Lea, M.D.

“CJR-X (Comprehensive Care for Joint Replacement Expanded) Model,” CMS.gov

In this fascinating episode, explore how the Exclusive Remedy Rule works in the real and evolving world of Workers’ Compensation law. A recent case in Washington State, the Teela Bauer case, challenges the traditional exchange of employer civil protections for worker compensation in the case of workplace harm.

This is an interesting case as it involves an employee’s exposure to chemicals which may have led to the employee’s child’s birth defects. So, was there a workplace injury? Or is the company liable for something that went beyond the visible, definable workplace injury? Can the worker sue for something that may have started in the workplace but didn’t occur there? All good questions.

The unborn child didn’t work for the employer. The parent wasn’t physically injured in the traditional sense at the workplace. But the plaintiff asserts the chemicals used on the job led to biological damage that led to the birth defects of the conceived child. Now the question is whether the traditional Exclusive Remedy doctrine precludes the parents from bringing a separate lawsuit against the employer. It gets complicated in a hurry. The worker wasn’t visibly injured, but the non-employee child has suffered some harm. 

Workers’ Compensation law is an ever-evolving thing. Cases occasionally challenge what we thought we knew. Will the Teela Bauer case change the Exclusive Remedy Rule? Will legislation follow? It’s fascinating.

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected] or [email protected]. 

Referenced Links:

Teela Bauer ruling, Justia Law

“Boeing Must Face Negligence Claims Over Birth Defects of Employee's Child,” Courthouse News Service

“Workers’ Compensation: No Longer The Exclusive Remedy,” Pierce, Pierce & Napolitano

Foley v. Polaroid Corp, Justia Law

Anderson v. Cryovac, Inc., “the Woburn case,” Wikipedia 

Sometimes the work done by law students can surprise everyone. This episode may shock you. Continuing a tradition, we honor the annual winner of the John F. Burton Jr. College of Workers’ Compensation Lawyers Law Student Writing competition. This year, guest Roxanne Mosley is the winner with her findings in “The Uncompensated Risk: Federal Workers’ Compensation and the Human Toll of the Weaponized Shutdown.”

Mosley examined the nexus of government shutdowns and the impact on federal employees protected under FECA, the Federal Employees’ Compensation Act. Government shutdowns aren’t just political showdowns, they have the potential to harm real people: federal workers protected under federal Workers’ Comp programs.

Mosley witnessed the human toll of a federal shutdown, including missed mortgage payments and simply making the ends meet at the end of the month. But she also found the unexpected toll inflicted on those federal workers, the potential Workers’ Comp shortfalls.

During a government shutdown, federal employees deemed essential may be asked to keep working without concurrent compensation, which can be marked as a “zero” on a worker’s pay stub. This is critical if a worker is injured on the job, as benefits are determined by past payment records. A period without pay can be included in that compensation calculation, resulting in reduced benefits. Mosley is calling for federal protections and Congressional action. 

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected] or [email protected].

It’s never funny when a worker is injured on the job, but some cases do raise eyebrows. In their annual look into some “unusual” Workers’ Comp cases, Jud and Alan uncover some incidents that challenged the system, some by just being so weird.

Where did my ladder go? A worker on a rooftop was stuck when others removed the ladder and left the job. Desperate to get down, he jumped, suffering back and foot injuries. Is the worker to be blamed for intentionally jumping, or was he left with no choice? 

The falling clipboard case. From the Supreme Court of Idaho, a helicopter pilot died in a crash when a passenger dropped a clipboard that struck the tail rotor and damaged it. Who’s liable? What’s an accident, and where does civil liability intersect with Workers’ Comp?

A tryst in France, during a work trip, and the ensuing heart attack? Squeezing an oversized customer into a tiny mermaid-style wedding dress? Messing around with a flammable can of tire glue (at work)? Just as workers do unusual things, the courts also rule in unexpected ways. We can all learn from cases like these.

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected] or [email protected]. 

Mentioned in This Episode:

Thomas A. Robinson, WorkCompWriter.com

“Krinitt v. Dept of Fish and Game,” Justia.com

“The Surprisingly Broad Scope Definition of Workplace Accidents in France,” Proskauer

“Lea v. David Bridal of Greensboro, Inc. (2019)” Findlaw

“Zerofski's Case,” Massachusetts, 1982

“Employee Loses Testicle to Boss's Golf Swing: Court Affirms Boss's Liability,” FindLaw

With the rise of artificial intelligence, it makes sense to think about the use of AI analytics in Workers’ Compensation case outcome management. What types of tools lead to efficient claim management, including shorter claim durations and better outcomes?

Guest Ryan Murphy has spent his career understanding and developing case management systems. As vice president of product at the third-party Workers’ Comp benefits administrator CorVel Corporation, he works with clients and analyzes and develops solutions that remove friction and deliver successful resolutions for clients and work.

We’ve come a long way from the days of “snail mail” and faxes. Today’s tech allows case management specialists to incorporate operational efficiency technology and help workers and employers resolve cases and get injured workers back to their lives. 

But as Murphy explains, tech isn’t a replacement for human communication and compassion, it’s a partnership. Data analysis, data aggregation, and claim summarization can help human case managers reach better conclusions faster. Every industry is being transformed by emerging technologies, Workers’ Comp is no exception. Be a part of the future today.

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected] or [email protected]. 

Mentioned in This Episode:

Previous episode of Workers’ Comp Matters, “A New Approach to Workers’ Comp: Being Nice?” with Claire Muselman

Recovering from a workplace injury takes time, patience, and in many instances, professional case management. Guests Cindy Bourbeau and Annie Barach with Massachusetts-based Medical and Life Care Consulting Services explain how nursing case management professionals help injured workers through recovery and the Workers’ Compensation program.

Misconception that they are “spies” for insurers in claims cases. In reality, medical case management professionals help patients understand and work through Workers’ Comp, advocating for them and helping insurance companies understand necessary care to ensure a full recovery. 

Licensed case managers help with medical evaluations programs of care that help injured workers return to their jobs and get on with their lives. At times, our guests explain, there are complications in the system that are akin to “untangling a web.” 

Hear how professional case managers help coordinate care, medicines, logistical concerns, insurance, treatment approvals, and therapy, helping patients maximize recovery and return to the best lives they can. 

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected] or [email protected]. 

Mental health plays a big role in workplace efficiency and safety, but it seems employers and employees view the topic differently. Guest Joseph Toppe, a longtime journalist and managing editor of the insurance news website PropertyCasualty360.com shares an interesting study from Pie Insurance. 

In recent years, employee mental health has become a more prominent issue. You don’t see the physical injury, but the injury may be there just the same. Where do employers see the risks of mental health, and how does that compare to workers’ needs? Employers and employees don’t agree. 

There’s a disconnect over workplace mental health that needs to be addressed. There needs to be a discussion. You can’t see a mental health injury the way you see a physical injury, but those injuries are real. And the evolution of AI and automation is only adding to the employee stress.

In small businesses, especially, claims for mental health injuries are on the rise. Do you understand this new frontier? Workers’ Comp doesn’t end with “slips, trips, and falls.” 

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected] or [email protected]. 

Resources:

Articles by Joe Toppe

“Most U.S. Employers Say Mental Health Issues Contribute to Worker Absences,” by Joe Toppe

“New Report From Pie Insurance: Small Businesses Safety Priorities Shifting as Employee Needs Evolve, Survey Show” Pie Insurance

Causation and Workers’ Compensation? It’s complicated, and it varies by state. The concept is that to qualify for Workers’ Comp there must be a direct link between the injury (or illness) and the workplace. But how do you prove what’s a direct result of the workplace and what was the result of a prior injury or condition? 

Here’s where it gets confusing. Every state has its own rules. There are varying degrees of required proof, pre-existing conditions, mental trauma, contributing causes, and it can be a challenge to sift through each jurisdiction’s standards. 

Hosts Judson and Alan Pierce dissect how pre-existing conditions complicate work-related injury claims. It’s not always as clear as it seems, and state-by-state regulations create even more confusion. Add in workplace psychological stresses and it goes even deeper.

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected] or [email protected]. 

Mentioned in This Episode:

“AMA Guides® to the Evaluation of Permanent Impairment: An Overview” 

“AMA Guides to Disease and Injury Causation,” by J. Mark Melhorn