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June 30, 2012

Work related rotator cuff tears

With the cut back in the labor force more and more workers are being forced to pick up the slack. This oftens times leads to injuries caused by over-use. One of the common injuries associated with over-use is the tear of the shoulder's rotator cuff.

A person with a rotator cuff tear will often complain of pain while resting or pain with movement such as lfiting, pushing, pulling and reaching. You may also experience pain at night. Rotator cuff pain is described as an aching pain but could increase or become more sharp with activity. Typically, people over 40 experience a larger percentage of full thickness rotator cuff tears than people under 40.

An MRI is the standard for diagnosing rotator cuff tears. While arthrography can be used to diagnose a partial full thickness tear, it is not useful in diagnosing partial tears.

Convservative treatment of a rotator cuff tear includes non-steroidal anti-flammatory medications. Your doctor may also prescribe a course of physical therapy which can include stretching and strengthening exercises, ultrasound, e-stim and phonphoresis.

Your doctor may also recommened a corticosteroid injection which may provide relief of your symptoms. This injection can also be used a a diagnostic tool based on the extent of pain relife you experience.

When consertive treatment fails, your doctor may recommend surgery. With the advent of arthroscopy, doctors are able to perform minimally invasive procedures to surgically repair rotator cuff tears. More than 95% of all rotator cuff tears can be treated arthroscopically.

The recovery period for a rotator cuff tear can be lengthy. Post operative strengthening usually begins around three months after your procedure. For a workers compensation patient it is helpful for them to have a job description to provide to the physical therapist who can customize their therapy plan. A work hardening program may be vaulable in conditioning the worker to return to their job.

June 22, 2012

Illinois Labor Update

A jury recently found that having a anti-sexual harassment policy just isn't enough to guard against lawsuits.

The EEOC suide the owner of a franchise restaurant on behalf of 2 young women who were sexually harassed by an older manager. When they reported the harassment to another manager, that manager "blew them off" and told them they were "silly girls." They complained to the general manager. The general manager told the girls that "she didn't need to hear it."

The employer as part of their defense to the claim testified to the various measures they had taken to prevent sexual harassment. They published a "zero tolerance" policy which mandated that all sexual harassment be reported. Employees were required to watch an educational video about sexual harassment and they were all required to read and sign the sexual harassment policy.

However, a jury found for the two young women. The verdict was upheld by the appellate court. It wasn't enough that they policies were in place. According to the courts " a rational jury could have found that the policy and complaint mechanism were not reasonable effective in practice," because the managers did not do what they were supposed in stopping the harassment. They ignored the girls complaints, delayed investigations and could have engaged in harassing behavior themselves.

This decision makes clear the fact that having anti-harassment policies in place iis only the first step in a strong policy prohibiting sexual harassment. Each employee, from managers and supervisors need to be properly trained to know how to handle sexual harassment claims and to effectively stop the harassment.

April 18, 2012

Illinois courts awards a portion of MSA funding to ex-wife

The Illinois Appellate Court ruled that the funds in a Medicare set-aside (MSA) are part of a workers' compensation settlement thereby allowing an ex-wife to a portion of the MSA.

The claimant was injured in a work accident in 2008. He filed a workers compensation claim and was married at the time of the filing. The claimant filed for divorce the following year and a dissolution of marriage was granted in August 2010. The divorce agreement awarded the ex-wife 17.5% of the net proceeds of the claimant's workers compensation settlement.

A settlement was reached in December of 2010. A Medicare set-aside (MSA) in the amount of $70,000 was established to cover future medical expenses associated with the claimant's original injury. Both parties agreed that it wasn't necessary to secure approval of the set-aside from CMS.

The dispute addressed by the courts was whether the MSA was in fact, considered part of the net proceeds of the claimant's workers' compensation claim.

The Illinois Appellate court subsequently ruled that the ex-wife was entitled to 17.55 of the MSA despite the fact the proceeds were intended for future medical expenses and that the establishing of the MSA was to protect Medicare's interests.

The courts determined that the claimant was the sole beneficiary of the MSA, not Medicare.

In its opinion, the courts wrote:

[The claimant] presents no evidence that the funds in the MSA are not ‘net proceeds.’ There is no question the money is his. The settlement was between [the claimant] and [the employer]; [The claimant] was given the money. It is not Medicare’s or [the employer’s] money. The MSA clarifies how much of the settlement is intended to pay for future medical costs associated with the injury and places that amount in a separate account so that it can be shown that those funds were used to pay [the claimant’s] medical costs caused by the injury. Since the dissolution decree defines ‘net proceeds’ to include payment for future medical costs, the funds in the MSA are net proceeds. The trial court correctly determined that [Ex-Wife] is entitled to 17.5% of the entire settlement.[fn12]

The dissenting opinion came from Justice McDade. Justice McDade believes that the MSA should not have been included as part of the claimant's "net proceeds" due to the fact that the agreement "expressly provides that the MSA funds are not included in total amount of the settlement."

Judge McDade went on to say that the awarding of the 17.5% to the ex-wife was a violation of public policy since Medicare was the sole beneficiary of the MSA, not the claimant. Justice McDade states "permitting the ex-wife to take 17.5% of the MSA funds would violate public policy and that such diversion of funds not only harasses logic, but it also cuts against the grain of the plethora of legislative authority has has been enacted since 1980 in effort to curb skyrocketing health care costs and preserve the fiscal integrity of the Medicare system."

February 24, 2012

Illinois Judge orders release of prison guards tests for carpal tunnel syndrome

After hearing arguments by Central Management Services, The Illinois Attorney General's Office and the Belleville News-Democrat, Cook County Circuit Court Judge, Michael Hyman ordered the release of medical records of prison guards at Menard Correctional Center who received disability payments for carpal tunnel syndrome, under the Illinois Workers' Compensation Act.

Central Management Services, the agency that processes workers' compensation claims for state employees, argued that the records were proprietary and should not be released to the public.

An attorney for the Belleville News-Democrat argued that the 50 nerve conduction velocity tests administered to the guards should be turned over once the identification of the patient was removed. .

The newspaper wants the medical records analyzed by medical professionals to determine why more than 230 prison guards from one prison would develop carpal tunnel syndrome from the act of unlocking and locking prison security doors.

The guards, employed by the Menard Correctional Center, received workers' compensation benefits which totaled more than $10 million.

The News-Democrat began investigating these claims in January of 2008. According to the paper, 2 private consultants have been retained by the State of Illinois, who examined the locking mechanisms at Menard. The consultants came to the conclusion that the simple act of locking and unlocking the mechanisms would not have caused carpal tunnel syndrome.

February 11, 2010

Federal court approves a $6.2 million settlement against sears

A Federal court recently approved a ADA payout by Sears in the amount of $6.2 millions. The EEOC filed a lawsuit aganst Sears alleging that the Sears' policy of terminating employees instead of providing them with a reasonable accommodation for their disabilities was in violation of the Americans With Disabilities Act.

The case was filed by the Equal Employment Opportunity Commission on behalf of John Bava, a Sears service tech. Bava was injured when he fell down a flight of stairs while at a customer's home. Bava's took leave according to Sears' rules and while he was still disabled by his injuries, attempte, on several occasions, to return to work. Sears would not accommodate his physical restrictions.

Instead, after Bava exhausted his leave time, Sears terminated him.

Continue reading "Federal court approves a $6.2 million settlement against sears" »

June 11, 2009

Recession expected to have mixed impact on Workers' Compensation insurance market

Harry Shuford, the chief economist at the National Council on Compensation insurance moderated a panel of insurance industry leaders. The panel addressed the issue of the effect the recession would have on Workers' Compensation. The panel concluded that a recession tends to place downward pressure on exposure. Their findings were told to attendees during the Casualty Actuarial Soeciety's ratemaking and product management seminar.

According to Shuford, recessions cause a decrease in employed workers. Wages continue to grow but at a much slower pace.

"In the first two of the three most recent recessions, claim frequency dipped dramatically," he said. "In the most recent recession of 2001, the downturn was already under way, and there was an increase in the rate of decline."

Continue reading "Recession expected to have mixed impact on Workers' Compensation insurance market" »

February 12, 2009

Berwyn mayor stops firefighter's from exercising while on duty

Citing the rising cost of workers' compensation claims from city workers, Berwyn Mayer Michael O'Connor has made the decision to ban firefighters from using exercising equipment while on duty.

According to O'Connor, Berwyn has paid $6 million in claims for all municipal deparments.

Stephen Petergal, 51, sustained a hernia while walking on a treadmill at the firehouse. Shortly thereafter, O'Connor banned of the use of exercise equipment to prevent further injuries from occurring.

Petergal is the first firefighter to sustain an injury on city exercise equipment. The Berwyn Firefighters Union Local 506 said the 24 hour shifts make it difficult for their members to maintain a regular exercise program.

A grievance has been filed against O'Connor.

Our thoughts: An out of shape firefighter runs a much larger risk of sustaining a serious injury. No, other city workers don't exercise while on duty, but how many other city workers run into burning buildings, up countless flights of stairs wearing hundreds of pounds of equipment? What was the mayor thinking?

February 2, 2009

OSHA hits Illinois painting company with 17 citations

Certified Painting Company in Alsip Illinois was fined $225,000 resulting from 17 citations by OSHA.

OSHA cited Certified painting for 8 willful and 9 serious violations involving workplace safety.

According to OSHA, Certified Painting was cited for allegedly failing to provide adequate carbon monoxide monitors, to provide and make sure that their workers were wearing protective clothing, to provide hygiene facilities and to ensure their employees were following the proper hygiene procedures after being exposed to lead and other hazardous materials. They also failed to provide US Coast guard life jackets and have available a lifesaving skiff where their employees were working over or near water.

They were cited for not providing fall protection equipment on scaffolding and for not maintaining a safety and health program. They failed to conduct regular inpsections of their job sites by a qualified person and failed to properly train their employees being exposed to hazardous materials.

Certified Painting Company performs industrial construction throughout the State of Illinois

The company has 15 days to contest the citations.

October 30, 2008

Doctor Proposes Nonpartisan Workers' Comp Rsearch Center

Dr. David Fletcher, an Illinois occupational medicine specialist, has asked the University of Illinois to help establish a new source of impartial information and research on Illinois Workers' Compensation issues.

Dennis Ruth, who resiged as Commissioner earlier this month thinks it's a good idea. "One of the things we see in complaints about the system is there is not a lot of research on workers' comp in Illinois. You get either anecdotal information or limited information...from a special interest group."

The "antiquated computer system" limits the Illinois Workers' Compensation Commission's (IWCC) abiltiy to do research. "So something like what (Fletcher) has proposed could be very helpful in addressing issues. It would be good to have information provided by someone with no particular axe to grind."

Dr Fletcher told WorkCompCentral that he has conducted some "preliminary discussions" with Robert Rich the director of the university's Institute of Government and Public Affairs in Urbana. Dr. Fletcher believes that a center should be established in order to conduct impartial and objective studies on Illinois workers' compensation.

"I believe there is a need for nonpartisan studies and informaton on our workers' compensation system," Fletcher said.

Dr. Fletcher, citing "discrepancies in studies by organizations such as the National Council of Compensation Insurance and the Workers' Compensation commission, has become frustrated. Dr. Fletcher believes that objective studies from a netural source in the state would benefit all those involved in the Illinois workers' compensation system, thereby reducing litigation.

To read the complete article click here

October 27, 2008

Workers' Compensation Laws Too Restrictive for Mine Workers

Officials announced Friday that a study was going to be conducted into why coal miners decline free x-rays to check for black lung disease.

According to the National Institute for Occupation Safety and Health several states have low rates of participation by coal miners with fewer than one-third choosing to receive the free x-ray.

Steve Earle with the United Mine Workers of America union, says that, " Workers' Compensation laws have become so restrictive that most miners diagnosed with the debilitating disease don't qualify for benefits." As a result, the miners skip the health screening that could have them be considered "damaged goods" by employers.

"What's the need in doing it," asked Michael Cardell a miner from Clay Kentucky who has worked in the mines for 30 years. "If you've got it, they won't do nothing for you."

According to Thomas Moak, a Coalfield lawyer, the politicians have made it too hard for afflicted miners to qualify for benefits. "Right now, there are very few benefits miners can receive if they test positive," says Moak.

Under current Kentucky law, miners diagnosed with black lung, have to be examined by a panel of five doctors before benefits can be awarded.

Click here to read the full article

October 24, 2008

Workers Comp suit against trucking firm can proceed

The U.S. 6th Circuit Court of Appeals reinstated a lawsuit brought by Michigan workers against their Illinois based employer, Cassens Transport Company. The lawsuit alleges that the employer, the Workers' Compensation insurance company, Crawford & Company and physician Dr. Saul Margules, committed mail fraud, wire fraud and violated the federal Racketeer Influenced and Corrupt Organizations Act or RICO Act.

The workers claimed they were fraudulently denied Workers' Compensation benefits.

Attorney Marshal Lasser, an attorney in Southfield has been representing current and former employees Paul Brown, William Fanaly and Charles Thomas. Lasser was stunned and pleased by the Court's ruling. "I've been fighting this battle for many, many years," Lasser said. "There are a lot of people who I believe are suffering because of unlawful denial of workers' comp claims, for which there is not relief under Michigan law."

The ruling however, does not mean the workers have won their case. It means the lawsuit can proceed in a Detroit US Disctrict Court.

Attorney, Janet Lanyon, who represented the defendants in the case, could not be reached for comment.

October 16, 2008

Unfair Employment Practices: Starbucks facing another complaint

The Detroit regional office of the National Labor Relations Board filed a complaint against Starbucks Corp, alleging unfair labor practices stemming from an investigation into a charge made by Cole Dorsey, an employee of Starbucks

In the complaint, Dorsey is alleging that he was was fired from his job at Starbucks for his "sympathies for and activities on behalf of the Starbucks' workers' union." Dorsey is a member of the Industrial Workers of the World Union. Dorsey had been given two prior disciplinary warnings by the store manager.

Stephen Glasser, the regional director at the Detroit office states,"We have reasonable cause to believe there may be a violation here when Starbucks terminated Dorsey."

The board has requested that Starbucks give Dorsey his job back, rescind the two disciplinary warnings, post notices in the store informing workers they have the right to join the union and pay Dorsey any lost wages resulting from his termination.

Starbucks claims that Dorsey was fired as a result of his being 30 minutes late to work and that the disciplinary action taken against Dorsey was related to his being tardy. The charge that he was fired due to union activity is "without merit," according to a Starbuck's spokesperson.

Starbucks had until October 14 to respond. If they are unable to settle Dorsey's complaint, the case is set for trial before an administrative law judge on Nov. 20.

About 200 current and former Starbucks' workers are represented by the union.