Workers’ Comp Hub Newsletter: Jan-March, 2013

January – March 2013
Edited by Jim Ellenberger

This newsletter brings to you top headlines, important legislative battles, and relevant resources in workers’ compensation and health & safety.

Craig Michie, an injured worker activist shares with us his fight for workers’ rights in the comp system; Workers’ Injury Law & Advocacy Group (WILG) President Cathy Stanton writes about emerging nationwide trends in anti-worker legislative attacks; and Patrice Woeppel indicts the workers’ compensation system for failing occupational disease victims and explores potential solutions.

States to Watch!

Nationwide Attacks on Workers’ Rights

This 2013 legislative session has seen a flurry of attacks on the human rights of workers in state legislatures. An anti-labor overhaul of the Tennessee workers’ comp system has just passed the Senate and House Operational Committees, drastically cutting benefits to all injured workers. The new law raises fair process concerns by minimizing independent court involvement in favor of a new administrative bureaucracy controlled entirely by the Governor. Also being attacked in Tennessee is the legal provision that gives the benefit of the doubt to the injured worker. This reform effort has been characterized as “driving a stake through the heart” of workers.  A similar move to reduce workers’ benefits and switch to an administrative system is underway in Oklahoma.

Additionally in Washington, traditionally a state friendly to workers, the Senate passed three anti-labor workers’ comp bills. Democratic Senator Karen Keiser says: “all these bills do is lower costs for businesses by taking benefits from those who need it the most”. Missouri meanwhile is contemplating creating an online database that would allow employers access to information about previous workers’ comp claims by prospective employees. This raises huge concerns for workers in terms of privacy, retaliation and potential blackballing by future employers. Other anti-worker reforms that affect the rights of injured and ill workers are brewing in Kansas, Nebraska and Delaware. For more on battles in these and other states, and emerging nationwide trends, see the Worker Injury Law and Advocacy Group’s (WILG) blog and chart. For more on how to take action in TN and KS, check out the take action section below!

Pro-Worker Reforms in Motion

In the face of strong industry opposition, Maryland is considering a crackdown on employer retaliation against injured workers who file for compensation. Meanwhile following the tragic Sandy Hook school shooting, Connecticut may expand their workers’ compensation system to cover PTSD for first responders. In a similar initiative for first responders, there is a bill on the div in New Jersey  that offers greater workers’ compensation protections for public safety employees. In Vermont, the state’s AFL-CIO, Vermont Federation of Nurses and United Electrical Workers NorthEast Region have joined with the Vermont Workers’ Center in advocating healthcare coverage for workers with job-related injuries and illnesses under Green Mountain Care, the state’s new universal health care plan, and delinking it from employment.   Workers would no longer have to prove they were injured or made ill at work to receive care; they would have immediate and automatic coverage. Finally, to report back on an issue we highlighted in our last newsletter, North Carolina will likely pass a bill reversing a mistake last year that made information on employers’ workers’ comp coverage inaccessible to workers, the state, and the public.

Kansas Supreme Court Affirms the Right to Workers’ Comp for All

On January 25th, the Kansas Supreme Court upheld a decision to award disability benefits to Martha Fernandez, an undocumented employee who was injured while working for McDonalds. While the fast food mega-chain fought hard against Fernandez’s right to benefits, the Court found that the Workers’ Compensation Act did not specifically prohibit an undocumented worker from any benefits, including disability. This important victory underscores that compensation for work-related injuries is a right to which all workers should have access, regardless of immigration status.

Workers’ Comp News

Railway Workers Gain Greater Whistleblower Protections

“Ensuring that employees can report injuries or illnesses without fear of retaliation is crucial to protecting worker safety and health” – Dr. David Michaels, OSHA

The Occupational Safety and Health Administration (OSHA) successfully negotiated with BNSF Railway to revise anti-worker policies that violated federal whistleblower provisions. This will protect railroad workers from retaliation for reporting hazardous safety or security conditions and on-the-job injuries. The resulting agreement includes measures to ensure that the company does not establish policies where a worker’s injury history is used against him/her, for example by assigning punitive points. BNSF has also agreed to make settlement offers in 36 cases to employees who filed whistleblower complaints with OSHA. In other railroad news, OSHA ordered Norfolk Southern Railway Co. to pay a total of $1.1 million to workers who filed whistleblower complaints after they were fired for reporting workplace injuries. OSHA also mandated that Norfolk must train employees on their whistleblower protection rights.

NFL Union Fights for Players’ Rights

There has been a string of NFL suicides linked to repeated head trauma experienced in contact sports. Players, teams, and fans have been forced to reconsider the toll that concussions take on the long-term health of players. NFL union leader De Maurice Smith has called on the NFL to “stop fighting our players on their worker’s comp cases, which is the main way our players get health care for the injuries they suffer at work.” He added that the league must prioritize not only the prevention of new injuries on the field but also the health of those who have sustained serious injuries with life-long impact. The NFL union is giving $100 million to a 10-year Harvard study on players’ health after concussions.

“Stop” Employer Fraud

Five construction companies working on Wal-Mart sites in Putnam, CT and Brooklyn, NY were issued stop-work orders by the Connecticut Department of Labor’s Division of Wage and Workplace Standards because they were suspected of avoiding paying for workers’ compensation insurance, unemployment taxes and other benefits by classifying workers as independent contractors when they were really employees. When workers who have been ‘misclassified’ become injured or ill on the job, they have no protection under workers’ compensation, and the financial burden of their treatment is ultimately passed on to the injured worker, their family, and government programs that rely on taxpayers’ money.

Twitter Storm Rallies for Tighter Silica Regulations

Silica causes silicosis, multiple cancers, lung disease, and a host of other life-threatening conditions. A proposed regulation would reduce legal exposure levels, which are twice the “safe” amount, helping to protect the 1.7 million U.S. workers who are exposed to silica every year. National COSH, unions and several other pro-worker organizations hosted a “twitter storm” on February 14th, the two-year anniversary of the silica rule getting mired in bureaucratic processes at the Office of Management and Budget. The goal was to pressure politicians and government agencies, as well as to raise awareness that this silica regulation must be passed immediately to protect workers’ lives and health.  To learn more about the silica fight and to take action, read Tom O’Connor’s commentary in The Charleston Gazette and visit the Center for Effective Government’s website on protecting workers from silica.

Fatal Dangers for Grain Storage Workers

Inadequate safety precautions, lack of training, and blatant disrespect for the law have contributed to the worker deaths that continue to occur every year in grain storage facilities. Recent investigation and reporting by NPR, The Center for Public Integrity, and the Kansas City Star are raising awareness of death by suffocation in grain bins and by explosion in grain elevators. While there are laws regulating minimum age and safety measures for cleaning out grain bins, farm managers continue to send employees inside bins with little to no safety training or equipment. Victims are often very young workers who were unaware that their employer was sending them into a potentially fatal situation. Their deaths are tragic and traumatic for their families and communities, but even in the most egregious cases there has been a troubling pattern of weak penalty enforcement and company immunity to criminal charges, raising serious concerns about human rights priorities.

Studies, Reports, and Resources

Occupational Injuries and Illnesses Cost $250 Billion: A recent study by J. Paul Leigh places annual costs for occupational injury and illness at $250 billion, exceeding the costs of cancer. The author uses the comparison to cancer to emphasize the severe lack of attention and funding given to workplace injuries and illnesses despite the magnitude of this human rights crisis in the workplace. Leigh comments that while the monetary figures he gives are astounding, they cannot “in any way account for the pain and suffering caused by this heavy toll of injury and illness.” However, the numbers help convey the scale of the health and safety problems and the human toll taken. 

Washington State Expands Occupational Health Resources: Washington is looking to add to its four Centers of Occupational Health and Education (COHE), which facilitate interaction between medical clinics, employers, and injured workers to give higher quality and more timely care to injured workers.

New App Helps Injured Workers with WC Treatment: A new app allows injured workers to locate network pharmacies, input personal medication and refill reminders, access workers’ compensation pharmacy card details, search for medication and drug class information, and store personal healthcare information, including allergies and healthcare provider contact information. It is called MyWorkComp.

On Workers’ Memorial Day -“Mourn For the Dead, Fight For the Living!”

Worker advocates around the country have begun to plan events for April’s Workers’ Memorial Day, a time to remember and honor those whose lives have been lost to or affected by workplace injuries and illnesses. In the spirit of “Bringing Awareness, Inspiring Mobilization, and Taking Action,” National COSH has organized a Week of Action from April 22-28; its site offers ways to participate and tools for getting involved on a local level. For more resources and information, also visit the Workers’ Memorial Day page at the AFL-CIO.

Protect Injured Workers in Tennessee
Learn more about how proposed changes to the Tennessee workers’ comp system will severely undercut the rights and benefits. Track the bill here. To take action and fight for workers’ rights visit Protect Tennessee Workers

Protect Injured Workers in Kansas

Find more information about how SB 187 and SB 73 will negatively affect injured workers in Kansas and take action by contacting your senator or signing a petition on the Working Kansas Alliance website.

Don’t Let Silica Take More Lives: Urge the White House to Pass Safe Limits Rule!

Send a message to the White House today telling officials that it is time to stop prevendiv deaths and illnesses by passing the OSHA rule for safe silica standards. Visit the Center for Effective Government to read and send this letter urging the White House and the OIRA to act now to “protect our workers and their families from unnecessary harm and heartbreak.”