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STRESS AND INJURED WORKERS: INJURED WORKERS WITH DIFFICULTIES POST WORK-INJURY AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Posted on October 19, 2020 by Edward Singer

This article is to discuss injured Workers’ stressors and a recent study on the matter. Prior to reviewing the study, I took it upon myself to list the stressors based upon my 28 years of representing Injured workers. The following is my assessment of stressors for Injured Workers while they are pursuing their claims are as follows:

Dealing with medical facilities and doctors
Being out of work
Dealing with your employer
Dealing with insurance
Dealing with attorneys
Dealing with litigation
Dealing with the Workers’ Compensation Appeals Board

Wow! Injured Workers have a lot of stressors!

As I indicated, a study was recently done which sheds some additional light on the stressors of injured workers. Is my assessments correct? Are there other items of concern?

Are Injured Workers Stressed Out?

Yes. The study found that the “[t]he prevalence of psychological distress among workers’ compensation claimants is high.” Collie, A., Sheehan, L., Lane, T.J. et al. Psychological Distress in Workers’ Compensation Claimants: Prevalence, Predictors and Mental Health Service Use. J Occup Rehabil 30, 194–202 (2020). https://doi.org/10.1007/s10926-019-09862-1

What Did the Study Find as Being Stressors?

Severe psychological distress, being off work, worse general health and requiring support during claim were most strongly associated with greater odds of service use. Collie, A., Sheehan, L., Lane, T.J. et al. Psychological Distress in Workers’ Compensation Claimants: Prevalence, Predictors and Mental Health Service Use. J Occup Rehabil 30, 194–202 (2020). https://doi.org/10.1007/s10926-019-09862-1

Are Injured Workers more stressed out than other People?

Yes. According to the Study, it was found. Collie, A., Sheehan, L., Lane, T.J. et al. Psychological Distress in Workers’ Compensation Claimants: Prevalence, Predictors and Mental Health Service Use. J Occup Rehabil 30, 194–202 (2020). https://doi.org/10.1007/s10926-019-09862-1

What Were the Factors that the Study Found as Stressful?

The study found “being off work, poor general health, low work ability, financial stress, stressful interactions with healthcare providers and having diagnosed mental health conditions had the strongest associations with presence of psychological distress Collie, A., Sheehan, L., Lane, T.J. et al. Psychological Distress in Workers’ Compensation Claimants: Prevalence, Predictors and Mental Health Service Use. J Occup Rehabil 30, 194–202 (2020). https://doi.org/10.1007/s10926-019-09862-1

One additional item that came out of the study that caught me by surprise that Injured Workers with prior psychological issues are susceptible to increased stress.

Can an Injured Worker Claim This Stress as Part of Their Claim?

With changes in the law, psychiatric injury claims are limited. Further, stress resulting from litigation is mostly considered as non-industrial. In certain limited facts, stress may be claimed. It is a factual inquiry.

Is There Case Law Re: Stress from Litigation?

Yes. The Courts have found that a psychiatry injury caused as a result of the litigation process is not work-related. Rodriguez v. Workers’ Comp. Appeals Bd. (1994) 21 Cal.App.4th 1747 [27 Cal.Rptr.2d 93]. There are some limited exceptions. See Patrick v. Marina City Club, 2010 Cal. Wrk. Comp. P.D. LEXIS 19 (carrier misconduct as the basis for stress)

What Should An Injured Worker Do?

Injured Workers should approach matter on multiple levels. One level is to seek medical attention and/or counseling for one’s stress. Another level is to address the situations that are causing the stress. This can include changing doctors, getting an attorney, addressing the employment situation is a substantial way and perhaps opening up to a friend or family member to get this stress off their chest. Also, if you are unrepresented, contacting the Information and Assistance Officer at the local WCAB may be helpful. Also, your company may may have an Employee Assistance Program which can help as well.

In sum, if an Injured Worker is having stress, there is help and solutions out there. Don’t try to go it alone.

What if I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

YOUNGER WORKERS AND WORK INJURIES: YOUTHFUL WORKERS, SPECIAL CONCERNS FOR YOUNGER WORKERS AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Posted on September 18, 2020 by Edward Singer

“When I was young, it seemed that life was so wonderful”

Supertramp

Does Age matter? Yes. Younger Workers get injured at different rates than Older Workers. A recent study brought light onto the issue of Age as a factor with respect to Work Injuries.

Younger Workers make up a significant number of the workforce. Adolescents and Young Adults represent approximately 13% of the U.S. workforce. Guerin RJ, Reichard AA, Derk S, Hendricks KJ, Menger-Ogle LM, Okun AH. Nonfatal Occupational Injuries to Younger Workers — United States, 2012–2018. MMWR Morb Mortal Wkly Rep 2020;69:1204–1209. DOI: https://dx.doi.org/10.15585/mmwr.mm6935a3external icon.

As a result of this, like all workers, they sustain work-related injuries. Per a study, it was estimated that “3.2 million nonfatal injuries to young workers were treated in hospital emergency departments, with the highest rates among workers aged 18–19 years. Data from 2018 indicate that the leisure and hospitality industry [i.e. food service such as McDonalds hotels, and amusement parks] contributed the highest percentage of injuries to workers aged 15–17 years requiring at least 1 day away from work.” Guerin RJ, Reichard AA, Derk S, Hendricks KJ, Menger-Ogle LM, Okun AH. Nonfatal Occupational Injuries to Younger Workers — United States, 2012–2018. MMWR Morb Mortal Wkly Rep 2020;69:1204–1209. DOI: https://dx.doi.org/10.15585/mmwr.mm6935a3external icon.

This article will discuss the rates of injury for Younger Workers, the implications for Younger Workers who sustain work injuries, the special concerns a Workers’ Compensation Attorney has with respect to these claims, and how the Workers’ Compensation Systems addresses Younger Workers’ Permanent Disability.

What Was the Study?

The study that was done looked into nonfatal occupational injuries of Younger Workers within the United States during the years 2012 to 2018. Guerin RJ, Reichard AA, Derk S, Hendricks KJ, Menger-Ogle LM, Okun AH. Nonfatal Occupational Injuries to Younger Workers — United States, 2012–2018. MMWR Morb Mortal Wkly Rep 2020;69:1204–1209. DOI: https://dx.doi.org/10.15585/mmwr.mm6935a3external icon.

How Does Age Make a Difference?

Yes. It was found that Younger Workers, aged 15-24, experienced a higher rate of job-related injury versus Adult Workers, aged 25-44. Supra.

Are There Any Interesting Facts Concerning the Injury Rates?

AGE RANGE WITH HIGHEST RATE OF INJURY: The highest injury rate (404 per 10,000 FTE) occurred among workers aged 18–19 years.

MALE VERSUS FEMALE: Within each of the four age categories, the rate of injury was 1.4 to 1.5 times higher among males than among females.

YOUNGER VERSUS MIDDLE AGED WORKERS: Annual rates of injuries among young workers aged 15–24 years were 1.2–2.3 times higher than those for workers aged 25–44 years. Guerin RJ, Reichard AA, Derk S, Hendricks KJ, Menger-Ogle LM, Okun AH. Nonfatal Occupational Injuries to Younger Workers — United States, 2012–2018. MMWR Morb Mortal Wkly Rep 2020;69:1204–1209. DOI: https://dx.doi.org/10.15585/mmwr.mm6935a3external icon.

How Do Young People Get Hurt?

Younger Workers can get injured in a variety of ways. One of the reasons why Younger Workers get injured is that they are often learning on the job. This makes them more susceptible to injuries.

For example,

“Contact with objects and equipment was the leading cause of occupational ED-treated injuries among all age groups examined, with rates of injuries ranging from 64 per 10,000 FTE among workers aged 25–44 years to 182 per 10,000 FTE among workers aged 18–19 years.” Supra.

“Lacerations and punctures were the most common type of ED-treated injuries reported among workers aged <25 years, with injury rates ranging from 66 to 99 per 10,000 FTE, “ Supra.

To the contrary, it should be noted that

“strains and sprains were most common among workers aged 25–44 years (injury rate of 47 per 10,000 FTE).” Supra.

Why are Work Injuries to Younger Workers a Concern?

One of the big concerns with respect to Younger Workers in California is the issue of lifetime medical care. Young Workers, to some extent, are more able to recover from injuries versus Older Workers.

Some injuries that have long term implications. There are injuries which can cause arthritis. Arthritis can take decades to become a problem for the worker. Therefore, Younger Worker may need medical care decades after the injury happened. Many Young Workers do not understand or appreciate this fact. This is an issue of discussion concerning settlement of their case.

How Does the California Workers’ Compensation System View Younger Workers’ Permanent Disability?

Younger Workers’ Permanent Disability is not viewed as significant as older workers’ permanent disability. For the same injury, a Younger Worker will receive less money than an Older Worker.

How is a Younger Worker’s Age Factored into Permanent Disability?

In the SCHEDULE FOR RATING PERMANENT DISABILITIES UNDER THE PROVISIONS OF THE LABOR CODE OF THE STATE OF CALIFORNIA (2005) , there is a provision for adjusting with respect to the Injured Worker’s age.

One of the steps in the permanent disability rating formula is to make an age adjustment. Using a Table, a Younger Worker’s Permanent Disability is lowered via the rating adjustment. See Schedule at P. 1-9.

In sum, the Schedule has a specific table that is used in a permanent disability rating formula to lower the disability rating. The disability rating being lowered translates into less money for the Injured Worker.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. Contact us today for more information.

INDOOR SWIMMING POOLS, WATER PARKS AND WORK-RELATED ASTHMA: POOL WORKERS AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Posted on September 17, 2020 by Edward Singer

In California, there are many individuals who work at Water-Related Facilities. With respect to this article, the Water-Related Facilities to be discussed are swimming pools, water parks, and hydrotherapy spas.

These facilities have been implicated as a source of either “new asthma” or an “aggravation of a pre-existing asthma condition.” An “asthma-related injury” caused by work at such a facility would give rise to a workers’ compensation claim. Such a claim would allow the Injured Worker to obtain monetary compensation in the form of both temporary and permanent disability, medical care, and vocational rehabilitation benefits, if indicated.

This article will discuss the nature of Water-Related Facilities, conditions which make these facilities susceptible to “water-related asthma injuries”, and the types of workers at such facilities that are at risk.

What Has Science Found Concerning Water-Related Facilities and Asthma?

“Clinicians need to be aware of the potential adverse effect that indoor swimming pools and water parks may have on both causing the onset of new asthma and aggravating pre-existing asthma. Attention to swimming pools and water parks as potential triggers for asthma may, for selected patients, be an important factor in asthma management.

The American College of Chest Physicians has developed a consensus statement for the diagnosis and management of work-related asthma that clinicians can refer to when evaluating adult patients with asthma35 . Weisel CP, Richardson SD, Nemery B, et al. Childhood asthma and environmental exposures at swimming pools: state of the science and research recommendations. Environ Health Perspect. 2009;117(4):500-507. doi:10.1289/ehp.11513

What Types of Workers are Susceptible to these Injuries?

Lifeguards and Pool Maintenance Workers have been implicated to be at risk for these injuries.

What Is Asthma?

Per the Centers for Disease Control, “Asthma is a disease that affects your lungs…Asthma causes wheezing, breathlessness, chest tightness, and coughing at night or early in the morning. If you have asthma, you have it all the time, but you will have asthma attacks only when something bothers your lungs.”

“Occupational asthma occurs when someone who never had asthma develops it because he or she is exposed to something at work. This can happen if you develop an allergy to something at work such as mold or if you are exposed to irritants such as wood dust or chemicals at work over and over at lower levels or all at once at higher levels.” Supra.

What is It About Pools that Can Bring on Asthma?

The term commonly used with respect to Occupational Asthma, in this setting, is Disinfection By Products (DBPs.)

“[T]traditional chemical disinfection processes result in the formation of disinfection by-products (DBPs) (Aggazzotti and Predieri 1986; Aggazzotti et al. 1998; Beech et al. 1980; Chu and Nieuwenhuijsen 2002; Fantuzzi et al. 2001; Glauner et al. 2005; Judd and Jeffrey 1995; Kim et al. 2002; Li and Blatchley 2007; Weil et al. 1980; Weisel and Shepard 1994; Zwiener et al. 2007). The specific types and levels of DBPs formed depend on numerous factors, including the type and amount of disinfectant used, characteristics of the swimming pool and pool water, and swimmer hygiene (Zwiener et al. 2007).” Weisel CP, Richardson SD, Nemery B, et al. Childhood asthma and environmental exposures at swimming pools: state of the science and research recommendations. Environ Health Perspect. 2009;117(4):500-507. doi:10.1289/ehp.11513

One study reported that it was “nitrogrogen trichloride is a cause of occupational asthma. This should be considered when choosing chlorine-based disinfectants that are likely to come into contact with a nitrogen source. It should also be considered in anyone developing occupational asthma working at a swimming pool and is also a likely cause of asthma in those who swim in these pools. To prevent further cases, much more attention should be paid to the quality of air in indoor swimming buildings, as well as t the care of the chlorine content of the water. Occupational asthma caused by chloramines in indoor swimming-pool air. K.M. Thickett, J.S. McCoach, J.M. Gerber, S. Sadhra, P.S. Burge, European Respiratory Journal 2002 19:827-832, DOR: 10.1183/09031936.02.00232802

Does the Worker Need to Go In the Water Be at Risk for Injury?

No. Workers who do not go into pools are at risk as well. Working at the swimming pool, but not going in the pool, may be a sufficient exposure. As noted above, it is an issue of air quality within the facilities that is a concern.

I Work at a Pool Facility and Am Having Lung Problems, What Should I Do?

It is recommended you seek medical attention, If you receive a diagnosis of asthma, you would consider filing a workers’ compensation claim. It is recommended you consult with an attorney as well.

What If I Need Legal Advice?

Legal Representation Within The Workers’ Compensation System: What You Need To Know

Posted on August 23, 2020 by Edward Singer

What is an Attorney? What is a Lawyer? Is there any difference? Injured Workers who are seeking representation to handle their workers’ compensation claims are often confused as to whether there are two different types of legal representatives. Further, Injured Workers are often confused as to what representative can be present on their behalf before he Workers’ Compensation Appeals Board.

This article will discuss Lawyers, Attorneys, and other Legal Representation before the Workers’ Compensation Appeals Board.

What Is a Legal Representative?

In California, a Legal Representative is a licensed member of the State Bar of California. The State Bar Website in fact uses the term “Attorney” and “Lawyer” interchangeably. In essence, there is no difference. Members of the State Bar hold themselves out as either being a lawyer or an attorney. Some use both terms. In sum, if you are looking for a legal representative, you are looking for a member of the State Bar.

What is the California State Bar?

Per the State Bar, it’s “mission is to protect the public and includes the primary functions of licensing, regulation and discipline of attorneys; the advancement of the ethical and competent practice of law; and support of efforts for greater access to, and inclusion in, the legal system.

The State Bar: Licenses attorneys and regulates the profession and practice of law in California, Enforces Rules of Professional Conduct for attorneys, Disciplines attorneys who violate rules and laws, Administers the California Bar Exam, Advances access to justice, Promotes diversity and inclusion in the legal system

Created by the Legislature in 1927, the State Bar is an arm of the California Supreme Court, protecting the public by licensing and regulating attorneys.

The State Bar licenses more than 250,000 attorneys, investigates approximately 16,000 complaints of attorney misconduct annually and distributes over $78 million in grants to legal aid organizations.”

How Does One Become a Member of the State Bar?

One becomes a member of the State Bar by having certain qualifications and taking and passing the California State Bar Examination. A person graduating law school and obtaining a law degree, Juris Doctor, J.D. is not a guarantee of being a State Bar Member. Many individuals who have J.D., degrees take and do not pass the examination. As a result, they cannot practice as a Lawyer/Attorney within the State of California. The Bar passage rate varies from year to year.

In California, the Bar passage rate is relatively low. For example, per the State Bar, the February 2020 General Bar Exam preliminary statistics reported that the passage rate was 38 percent for first-time applicants and 22 percent for repeat applicants.

For a Client, Is Active Membership in the State Bar Important?

Yes. An Attorney/Lawyer can only practice workers’ compensation law as an attorney if they are an “active” member of the State Bar. If a client wishes to check on an attorney’s status or whether they are a member, click here.

Attorneys can have various status. They can be active, on probation, suspended, inactive or disbarred.

Is There Non-Attorney Representation Before the Workers’ Compensation Appeals Board?

Yes and No. Non-Attorneys can provide representation before the WCAB. There must be a filing to the WCAB concerning this representation.

Per the Policy and Procedure Manual of the WCAB, Section 1.120 (2013 Revision), provide for “APPEARANCES In each case in which a law firm representing an injured worker appears by an employee not holding current active membership in the State Bar of California, pursuant to Rule 10773, the employee shall file at the time of his or her first appearance at the WCAB an original document that: 1. discloses to the board and to the applicant that he or she is not licensed to practice law in the State of California; 2. states the name of the attorney directly responsible for supervising the employee; 3. specifically states that the employee is authorized by the supervising attorney to sign settlement documents; and 4. is signed by the supervising attorney and the client.” [emphasis added]

Note: Even Defense Attorneys can have non-attorney representation before the WCAB, “In each case in which a law firm representing a defendant appears by an employee not holding current active membership in the State Bar of California, the employee shall file at the time of his or her first appearance at the WCAB a document that complies with the paragraph above, except that it need not be signed by the client.”

What About Settlement Documents, Can a Non-Attorney Representative Sign Them?

Yes. However, prior to the submission of the settlement documents for approval, the Law Firm is required to file the Non-Attorney Representative Notice.

Can a Non-Attorney Representative Get Paid from the Settlement Award or Order?

No. Pursuant to Labor Code Section 4903, no fee for legal services shall be awarded to any representative who is not an attorney.

What About Disbarred Attorneys, Can They Provide Representation?

No. Per the P & P Manual, “[a]n attorney who has been disbarred, suspended, declared involuntarily inactive by The State Bar, or who has resigned with charges pending before The State Bar, is not allowed to appear in any manner before the WCAB. (Rule 10779; In Re Roman Pellicer (2008), WCAB en banc, 73 Cal. Comp. Cases 1065.)”

Why Do Attorneys Use Hearing Representatives?

There are many reasons why Attorneys use Hearing Representation. In the process of workers’ compensation cases, there are many limited issues for which an attorney’s time and services are not required. Therefore, it is convenient to use a Hearing Representative to handle such an appearance. For example, the hearing is intended to continue the case to a further hearing. Some more experienced Hearing Representative handle more complex matters. Most of them have never attended law school. Therefore, they most likely lack the legal training that you get in law school which includes legal writing, legal research, analysis of authority, and legal argument.

What is Your Opinion on Hearing Representatives?

Like Attorneys, Hearing Representatives are a mixed bag. Some are very good, some are average and some are lacking. I employ Hearing Representatives to handle limited matters before the WCAB. Most times, I use them only when I have a conflict and I essentially need to have a “warm body” make an appearance before the WCAB. I prefer to have an Attorney present, however. I prefer to not have Hearing Representatives deal with legal issues.

If you are concerned about a Hearing Representative on your case, you should contact the Law Offices and speak to the attorney who is directly responsible for supervising the employee.

What If I Need Legal Advice?

WHY ARE WORK INJURIES NOT REPORTED?: WORK INJURY CLAIMS AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Posted on July 23, 2020 by Edward Singer

“To File or Not To File? That is the Question”

It is common knowledge that there are many work-related injuries that are not reported. The lack of reporting denies the Injured Worker the opportunity to claim workers’ compensation benefits which may include disability benefits, medical care, and vocational rehabilitation benefits.

This article will discuss why both Employees and Employers don’t report work injuries claims. This article will also discuss whether there are times in which a claim should not be filed.

Why Is the Reporting of Work Injuries Important?

Pursuant to Labor Code Section 5402, a reporting of an injury triggers the obligation of the carrier to investigate liability for the claim and make a determination within 90 days. Further, if the claim is not denied, a presumption of injury can apply. Further, during the period of delay, the Applicant is entitled to receive medical care paid for by the carrier up to $10,000.00.

How Significant is Under-Reporting?

In the study, “[a] questionnaire and interview survey was administered to 110 workers performing similar tasks and several managers, health, and safety personnel at each of three industrial facilities. Although less than 5% of workers had officially reported a work-related injury or illness during the past year, over 85% experienced work-related symptoms, 50% had persistent work-related problems, and 30% reported either lost time from work or work restrictions because of their ailment. Workers described several reasons for not reporting their injuries,” . Under-reporting of work-related disorders in the workplace: a case study and review of the literature Pransy, Snyder, Dembe & Himmestein Pages 171-182 | Published online: 06 Dec 2010 https://doi.org/10.1080/001401399185874.

Note: In the study, significantly more Workers may have viable claims than those who report injuries.

Why Do Employees Under-Report Their Work-Related Injuries?

In a recent article, Employees reasons for not reporting injuries was discussed. Under-reporting of work-related disorders in the workplace: a case study and review of the literature Pransy, Snyder, Dembe & Himmestein Pages 171-182 | Published online: 06 Dec 2010 https://doi.org/10.1080/001401399185874. The reasons for the under-reporting were as follows: including fear of reprisal, a belief that pain was an ordinary consequence of work activity or ageing, lack of management responsiveness after prior reports, and a desire not to lose their usual job.

Fear of Reprisal: Note: Injured Workers are afraid that their Employers or Co-Workers can act in a negative fashion towards them if they report an injury. Injured Workers are afraid that their pay, benefits, and work privileges and rights will be impacted. Co-Workers can also be adversarial towards the Injured Worker if they are implicated in the injury claim. For example, they might be the cause of the injury claim as they may have stressed out or injured the worker. Also, the Co-Workers may be a witness to the injury. The Co-Workers may not be happy that they are brought into the claim and have to make a statement against their Employer. Note: Labor Code Section 132a protects Injured Workers and Employee Witnesses to claims.

A Belief that Pain was an Ordinary Consequence of Work Activity or Ageing: Note: Individuals with limited knowledge of medicine may not understand that certain medical conditions may be work-related. This may be compounded by the fact that the Worker may not have sought treatment or medical care to be diagnosed with a condition.

Lack of Management Responsiveness After Prior Reports Note: Many times, injuries are reported and managers do nothing. At that point, an Injured Worker just gives up.

Desire Not to Lose Their Job Note: Certain Work Injury claims can impact one’s ability to work. Medical treatment or reporting may generate work restrictions that would preclude them from performing their job. Also, there is the fear that they will be terminated for filing a claim. Note: Labor Code Section 132a protects Workers against wrongful termination for reporting of a claim.

One reason not mentioned in the survey was

Worker not aware of their Rights to Claim Work Injury Note: Many workers are not aware of their workers’ compensation rights. Also, there are some injuries can be work-related that an Injured Worker would not know that they are work-related.

Why Do Employer’s Under Report Employees’ Work-Related Injuries?

In the article, it noted that “interviews with management representatives revealed administrative and other barriers to reporting, stemming from their desire to attain a goal of no reported injuries, and misconceptions about requirements for recordability.” Supra.

Desire to Attain a Goal of No Reported Injuries Note: Workers’ Compensation claims cost Employers money due to increased premiums. For self-insured Employees, there can be increased reserves because of claims. In sum, work injuries cost Employers money.

Misconceptions about Requirements for Recordability Note: some Managers or Leads may not understand that what a work injury is and therefore not offer paperwork to the Injured Worker to file a claim.

Should an Injured Worker Report a Claim?

One should take thoughtful consideration when deciding whether to filing a claim. They should think about whether it is worth filing the claim. They should think about the implications in the workplace, and they should think about whether there is a medical/legal basis for filing the claim. Consultation with an attorney is recommended to make the determination. Further, a medical consultation might be of import as to whether there is industrial causation of the medical problem.

What If I Need Legal Advice?