The U.S. Labor Department, in a new report released this month, calls for an “exploration” of federal oversight and possibly federal minimum benefits for injured workers who seek a remedy through the state workers’ compensation program. Congress

The report asks, “Does the workers’ compensation system fulfill its obligation to injured workers?” In short, the agency says, workers who are hurt on the job are at serious risk of slipping into poverty.

Over the years, there have been numerous changes to workers’ compensation laws across the country. This is not a coincidence, but instead, as ProPublica reported in its excellent series, “The Demolition of Workers’ Comp.,” part of a calculated effort by large businesses to lobby state legislators for lower benefits or tougher access for injured workers. This effort has largely been successful, as evidenced by the fact that workers face more barriers to benefits than ever before. In fact, while employers are paying the lowest rate for workers’ compensation coverage, and insurance companies are turning an 18 percent profit, injured workers are turning to taxpayer-funded programs like Social Security Disability Insurance (SSDI) and Medicare to recover lost wages and medical costs they are no longer receiving through their workers’ compensation plans.

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Workers’ compensation subrogation liens are actions taken by an employer asserting the right to collect on damages an injured worker won in a third-party injury lawsuit. For example, a worker who is injured by a negligent driver in a car accident may pursue not only workers’ compensation benefits but also a third-party lawsuit against the negligent driver. Intersection

N.C. 97-10.2(f) holds that employers have subrogation rights if they have filed a written admission of liability for benefits, and the employee has obtained a judgment against or settlement with a third party for the same injury. There are some guidelines, though. First, out of that damages award, the actual court costs and reasonable expenses incurred by the employee for litigation have to be paid. Then, the attorney who represented the employee in the third-party action has to be paid (not exceeding one-third of the total amount recovered). Then, the employer can be reimbursed for all of the benefits by way of compensation or medical bills paid by the employer. Then, after all that, the employee or personal representative will get paid.

This system puts the employer’s subrogation lien above the worker’s right to be made whole. It is not so in some other states. In Montana, for example, the law is that workers must be made whole before an employer has the right to impose a subrogation lien and collect its share. The conflict in the different state laws on subrogation was seen recently in the case of Talbot v. Cudd, a Montana Supreme Court case.

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A woman who worked for a Trader Joe’s store in New Jersey has been awarded $7 million in a personal injury lawsuit filed against an elderly driver who lost control of her vehicle and crashed through the store three years ago. grocery carts

The 52-year-old employee was forced to undergo a leg amputation – one of 13 surgeries she endured following the incident – when a motor vehicle driven by a 75-year-old disabled woman went out of control. The vehicle jumped the curb and slammed into the victim as she stood in the cart corral location just in front of the store. The plaintiff was thrown through a window and pinned by the vehicle.

The victim was rushed by helicopter to an emergency room in Hackensack, where doctors tried for hours to save her leg. They were ultimately unsuccessful and had to perform an amputation just below the knee joint. Infections ultimately required the plaintiff to lose her leg above the knee too. In the months since, NJ.com reports she has been required to go through many months of rehabilitation and physical therapy, all of which has been extremely physically painful. She has also battled “phantom-limb pain,” and she struggles with anxiety and the permanent, life-altering injuries that left her unable to continue working. Her attorney also made note of the fact that her treatment has included powerful and potentially habit-forming narcotic pain medications.

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Spartanburg County has received 45 complaints of employees seeking workers’ compensation benefits since a project to remove mold at the local courthouse started over the summer. mold

Since mid-July, the clerk of courts reports nearly 19 percent of its workforce has been afflicted with mold-related illness. There are a total of 240 employees who regularly work at the courthouse. The county council agreed the nearly 60-year-old facility, located on Magnolia Street, was in dire need of repairs. Approximately $300,000 has been set aside specifically to remove mold.

Unfortunately, the abatement is taking much longer than originally anticipated. Originally, contractors vowed to have the work finished by Labor Day. However, removal crews reportedly discovered even more mold problems. Numerous departments were displaced while work was conducted in their normal workplaces. Most employees are now back to their original locations. However, the county continues to receive worker complaints that include problems such as raspy voices, nosebleeds, sore throats, and swollen eyes.

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Federal safety regulators as well as hotel employees are demanding improved safety protocols after a hotel worker was found deceased inside a walk-in freezer at the high-end Westin Peachtree Plaza in Atlanta. freezer

Authorities discovered the body of a 61-year-old female worker who spent an estimated 13 hours inside a freezer that was set to below minus 10 Fahrenheit. It’s not clear whether the hotel realized she was missing, but it wasn’t until her husband called the hotel to report that she had not returned home that her body was finally discovered.

Safety inspectors and union leaders now say these types of walk-in freezers need to have some type of standard alarm inside so that anyone who becomes stuck or hurt inside would be able to set off an alarm that would directly alert either hotel security or emergency services. Workers at the hotel are also proposing some type of “panic button” they could keep on them at all times in order to send out a signal in case of an emergency.

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Drug and alcohol impairment on-the-job can pose serious hazards for workers. However, it’s not necessarily a deal-breaker in terms of workers’ compensation. It really depends on the underlying circumstances and whether the worker was appreciably impaired and the impairment caused the injury. bud

This issue is going to be coming up with greater frequency as pro-marijuana legislation sweeps this country. Although the drug is still illegal in both North Carolina and South Carolina, bills have been floated in both states that would change that. As it now stands, more than half the states in the U.S. plus D.C. allow the drug for medicinal purpose and a handful allow it for recreation. The question of what constitutes as marijuana “impairment” is a tough one because unlike alcohol, THC (the active ingredient in marijuana) remains in one’s system for much longer than 24 hours. That means evidence of the drug in one’s blood stream – even at higher levels – does not necessarily prove intoxication.

Recently in Colorado, it was revealed that a worker who died after being crushed in a Denver factory had THC in his system. However, the investigation by the Occupational Safety and Health Administration is more heavily focused on the purported flaws in the equipment.  Continue reading

Some work-related injuries are obvious: There is bruising, a laceration, bleeding or a fracture clearly visible on an X-ray. Other injuries may not be easily seen or verified. That does not necessarily mean one cannot receive workers’ compensation for them, but they are tougher to prove. Prior injuries too can prove challenging when trying to establish that the ailment in question is causally related to work.hospitalhall

The recent case of Yarborough v. Duke University before the North Carolina Court of Appeals involves a claim filed by a hospital cafeteria worker who claimed to have suffered a shoulder injury after being struck by a swinging door while returning from delivering patient meals.

The issue in this case was not whether plaintiff was acting in the course and scope of her employment at the time of her alleged injury. Rather, defendant employer disputed that an accident had occurred at all, and the full commission concluded she hadn’t suffered an injury by accident. This case came down to a he-said-she-said matter of credibility. Continue reading

Missclassification of workers as independent contractors rather than employees is a major problem in North Carolina. State officials have been heavily focused on it in recent years, with the governor issuing Executive Order No. 83 in December 2015, which created the Employee Classification Section of the North Carolina Industrial Commission. hammer

Although the government and the courts are certainly more aware of the problem, it continues to occur. That’s why even a worker who is denied workers’ compensation benefits on the grounds they are an independent contractor – as opposed to an employee – should consider first talking to a lawyer before giving up. Injured workers may actually be employees, no matter how the company officially classified their status. A determination of whether a worker was an employee or an independent contractor may be based on numerous factors subject to interpretation.

The recent North Carolina Court of Appeals case of Bentley v. Piner Construction was an appeal from a worker arguing the Industrial Commission made a mistake when it ruled he was an independent contractor rather than an employee for purposes of workers’ compensation. Worker argued the mistake was in basing an opinion and award on a previous opinion and order issued by a deputy commissioner who wasn’t at the hearing and never heard the evidence. The appellate court agreed and ordered a new hearing.  Continue reading

A building boom in South Carolina has prompted a construction worker shortage that is reported to be affecting us here much worse than in other states. That’s according to a recent survey conducted by the Associated General Contractors of America. The word from companies in South Carolina is that they are having a much more difficult time finding construction work help than their counterparts in other areas. Respondents of the survey revealed they intend to keep hiring more workers, even though many here are already pulling higher wages and more overtime. constructionzonesign

Four out of five contractors in South Carolina – or 83 percent – indicated they are struggling to find craft construction workers. That’s compared to 69 percent nationally. Further, 7 out of 10 contractors here have vowed to hire more people in the coming year, though a only a small percentage believe it’s going to get easier to do so.

On the one hand, this is good news for workers. It means there are jobs available, and workers may have more leeway in demanding higher wages and safer working conditions. However, it could also lead to problems because companies may in their haste to fill positions hire people who perhaps aren’t qualified or fail to provide the proper training for each job. Industry insiders are concerned because, particularly when it comes to skilled labor, it’s important to have the right person for the right job. Unfortunately, many companies are going to find themselves hiring workers who are less experienced than would be ideal for certain projects.  Continue reading

Federal regulators have slapped a Wayne County sawmill with a fine in excess of $200,000, accusing the owners of intentionally and repeatedly violating numerous federal workplace safety laws.sawdust

The U.S. Occupational Safety and Health Administration (OSHA) alleges that Wayne Lumber & Mulch Inc. has engaged violations that include:

  • 3 willful
  • 9 repeat
  • 12 serious
  • 3 other-than-serious

For a total of 27 violations, federal authorities are proposing a fine that tops $214,600. This recommendation comes just two years after OSHA cited the same company for 40 violations back in March 2014. At that time, OSHA initially recommended a fine of $82,000, but ultimately agreed to a settlement for exactly half that, $41,000. Now, however, OSHA officials say it’s clear the company didn’t take those earlier violations seriously.  Continue reading

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