The Lombardi Law Firm Blog

Lighting Strikes and Kills Worker

Did the Sioux City Sewer Pipe Workers Receive Confined Space Training?

Anderson Erickson Accident Claims Life of Long-Time Employee Manager

Chemical Safety - Handling or Cleaning up Sodium Hydroxide

Workers Compensation Insurance Fraud Alleged in California

Allegations of fraud surround a California roofing company. Most of the time tort reformists allege fraud on the part of employees who file workers compensation claims. The lawyers working in this area know that employees are not the source of waste or fraud that costs some state workers’ compensation programs. Iowa is certainly not one of the states with a great deal of waste. Our state program has some of the lowest rates and best claim histories for any state. The Iowa Insurance Division regularly investigates fraud and has an Insurance Fraud Bureau that attempts a one-sided and misguided focus against employees without focusing on the larger problem, employer or business fraud that manipulates payroll and claims to avoid premium payments.  It’s easy to talk about fraud with some fictitious worker filing a false workers’ compensation claim, but in Iowa actually finding those cases has not proven to be true.

This time it’s California, a state that has had reforms aimed at reducing costs. The state of California is making various allegations; see below. What’s interesting is that the alleged fraud and bad business practices have nothing to do with employees filing for workers’ compensation benefits. Instead it’s the employer who is the focus of this investigation.

Investigators said Petronella and Kile told insurers their payroll was $2.9 million from 2000 to 2009, the period under scrutiny. But their actual payroll totaled $29 million. According to the district attorney, the $38 million fraud allegation consists of $29 million in unpaid premiums plus penalties and assessments for inaccurate reporting.

The bias of tort reform groups can be seen not so much by what those groups report on but on what they don’t report. In this instance this story isn’t found on any of the major tort reform sites.

Tort reforms previously passed in California have had mixed results. There was a temporary decrease in insurance rates but coverage for high risk laborers is beginning to increase. This type of case shown by the roofers may be one reason for that increase.

From 1998 to 2003, average premiums for all jobs tripled to $6.45 per $100 in payroll, according to the Workers Compensation Insurance Ratings Bureau. Following reforms passed in 2004 under Gov. Arnold Schwarzenegger, average rates dipped to $2.25 per $100 in payroll by the end of last year.

But those rates are poised to rise again. The Workers Compensation Insurance Ratings Bureau proposed a 24 percent increase beginning in July,

Rates for construction workers, such as roofers, are more than 10 times the state average, because of numerous on-the-job accidents. The State Compensation Insurance Fund, a quasi-public company that is California's largest workers' comp insurer, currently charges $47.80 per $100 in payroll to cover roofers. In 2003, the rate was $99.68 per $100 in payroll.

The allegations appear to go beyond simple insurance claim practices. The allegations would appear to attack the business practices having to do with income and expense handling.

Prosecutors said Petronella and Kile used their companies as personal piggy banks to support their lavish lifestyle. The indictment says Petronella and Kile owe the state more than $1.1 million in back taxes for under-reporting their personal incomes from 2005 to 2007.

Between 2005 and 2007, they said, the couple reported $290,000 income on their tax returns while spending $2.1 million for personal items – designer shoes, clothing and jewels – on a company credit card.

"Their company American Express Black card, which by law should only be used for legitimate business purpose, became a passport to personal excess," Rackauckas said, "almost $440,000 on jewelry alone from 2005 to 2008, more than $425,000 spent on shopping sprees at luxury stores in 2008."

As always allegations of fraud and crime are simply that, allegations. All must be proven before guilt can be assumed.

Workers Compensation: How else can the Republican Party insult Iowa's work force?

Here is how Mike Gover of the AP reports it:

"DES MOINES, Iowa - A House panel has approved a measure that would give Iowa workers greater rights in choosing a doctor when they're injured on the job.

A subcommittee of the House Labor Committee approved the bill along party lines on Monday, with Democrats supportive and Republicans opposed. It was the latest in a series of labor-backed bills being pushed by Democrats who hold majorities in the House and Senate. "

The Republicans who oppose a worker choosing what doctor should treat their injuries are  publicly stating that most workers will act like Rush Limbaugh did and shop for doctors who will give them pills to excess. That argument is ridiculous. If it were generally true that people who get to choose their own doctors end up prescription drug addicts we'd all be addicted. Choice of physicians under most if not all health insurance policies has been a cornerstone of this country's medical insured industry. To claim that most people can not be trusted to wisely choose a treating doctor is disingenuous and panders to popular opinion that workers don't understand the global economy. Iowans are good solid workers with a history of acting rationally and in a way to save money. There is no evidence to the contrary. To assume the worst is a fabrication of the worst kind.

No worker in Iowa has to join a union. If the unions have in the mind of owners and managers caused concerns over costs and production it shouldn't be a factor in Iowa. Maybe it is a problem in Detroit but not Des Moines.

"Iowa is a Right to Work State. Employees who work in Iowa, except on federal property or for a railway or airline, have a right to resign from union membership and not pay union dues or fees. If you are an employee in Iowa and have legal questions regarding your union membership, click here to learn about your rights."

This is why the Republican's lost the last election. They assume the worst when workers are concerned. There are many laborers who claim to be Republican or at least to have Republican values. If this weren't true then Bush would never have been elected and then re-elected. Workers pay taxes just as management does. Workers understand and fully appreciate the competition we have with China over jobs. To assume all workers are either not smart enough to understand this issue or down right dishonest, is stereotyping of the worst kind.

Get over it. Workers built this country. If they abuse the privilege the Iowa Industrial Commission will take corrective action.

Choice of doctor bill isn’t about choice so much as it’s about controlling the outcome

The choice of doctor bill in the Iowa Senate is getting a lot of press lately. There are stories here, here and here. After 28 years of practicing workers compensation I’ll throw in my two-cents, for what it’s worth. I’ll warn you at 54 I’m cranky, have little tolerance for being patronized and say it like I see it. If that’s too much for you then you needn’t read any further.

The Issue: Iowa’s workers’ compensation laws don’t allow the injured worker the right to choose the treating physicians. Treating physicians under Iowa law are selected and paid by the employer; which in many instances is a workers’ compensation insurance company. There are a few self-insured manufacturers in Iowa; they tend to be quite vocal about wanting control over selecting the company doctor.  There is a bill before the Iowa Senate that would change which party has the right to select the treating doctors. The bill would allow injured workers the right to say which doctor can cut on them. Now you know the issue – it’s who will pick and then pay for medical treatment.

The employer’s position is being stated in the Des Moines Register by someone from Pella Corporation. Pella is a good business in Iowa and no one would want to see them go. Being a good corporation is only part of the game though; being a good citizen is also essential. When employers say it’s about getting the injured employee to the right doctor I find it hard to believe. Qualified doctors are all around Iowa. This isn’t Tanzania, Africa. We are talking the Midwestern United States. This isn’t about an employee picking his or her family doctor versus the employer having specialized knowledge and access to which doctors know best how to treat a particular injury. Let’s not patronize the people of Iowa. Posit all you want but let’s not be insulting to the good people of Iowa and their elected officials; they weren’t born yesterday.

Here is what I mean:

“Myron Lynn, compensation manager for Pella Corporation, says the doctors companies choose are familiar with the kinds of injuries workers suffer and can save time in diagnosing injuries a family doctor rarely sees. "It's access to quality medical care, getting the person quickly to the right doctor whose specialty is treating the kind of injury that the individual has, working with the physician to get the person back to work as quickly as medically advisable to do so," Lynn says, "and back to full wages."

The position Mr. Lynn states is disingenuous at best. Those doctors the employer selects aren’t specialists that only they have access too. Injured workers have the same access to any of the orthopedic surgeons available in the market place. What the employers really are talking about is controlling the words that the doctor speaks and when. The doctors know to sing the right tune or they won’t be on corporate America’s workers’ compensation dance card.

Here is what the employees face. They are injured, off work, earning 3/4rds of what they normally do and trying to make ends meet on the home front. Already nervous and facing an uncertain future they have little if any control over the medical care and opinions. They are totally beholden to this tug-of-war between the big insurance business, the AMA and some lawyer trying to help them get back to square one with the bills and work. Even if you’ve never been involved in such a claim you should be bright enough to figure out the little guy is backed into a corner with a six-shooter half loaded with bullets. You may wonder how bad it can get. Well allow me to give you one example. I’m familiar with a doctor in central Iowa who will treat an injured worker and as soon as the medical treatment is finished he is known to say the injury isn’t work related. Why would it take orthopedic surgeon months to come to the sudden realization an injury he’s treated for months is not work related? You may wonder why that is. Well it’s really pretty simple. There is no co-insurance or schedule of fees for workers’ compensation medical treatment. There is no trying to get the co-insurance payment from the patient or worse yet, a waiver of the co-insurance as negotiated by BCBS. In other words the reimbursement rate is higher. And why would the workers’ compensation carrier continue to send injured workers to this doctor. It’s all about money. They know these are compensable injuries. They know we know. But because they can generate a report from a ‘credible physician’ that says otherwise they have a 50-50 chance of walking away and paying less or even nothing.

Doctor’s Position: If a surgeon is licensed by Iowa’s Board of Medicine, then so be it they can slice and dice with the rest of them; it’s really about what comes out of their mouths at the conclusion of the doctor-patient relationship that matters to those who choose the “who”. Doctors aren’t dumb; they know how to get employers to keep sending them a stream of patients. If the doctors don’t cozy up the patient and limit their opinions on permanency, restrictions and when to send the injured patient back to work, then the steady stream will continue to break the threshold of the clinic entrance door. And they know that if they are too friendly in their opinions to the injured employee, then the clinic door bell will stop ringing. For the doctor’s it’s about paying the overhead. They are simply caught in the middle and probably want to be left alone to treat their patients without interference from case mis-managers, insurance mal-adjusters and attorneys trying to straighten out or to bend the facts.

Let’s not try to fool each other this isn’t about it having access to a better cadre of medical experts; it’s about controlling the expert opinions.  The doctors that regularly deal with workers’ compensation patients just want to know who to send the bill. Whoever has the out right choice rules the roost and they will suck up to either, just to get the bill paid. But what if they didn’t have to suck to either? Then what?

Employer’s Position: If Pella Corporation really wants to do what is right by their injured employees then they would allow them to choose their own doctors, but they don’t and won’t. And all of us involved in the system know why.

Employee’s Position: Many of these employees have serious medical conditions that require surgery that can kill them. Many employees feel degraded by this system that takes from them the right to be taken seriously. It’s their body. They should have the absolute right to say who gets to cut on it.

The Iowa Industrial Commission Position: When they are awake they are sick and tired of seeing what they see and hearing what they know to be true but politically they aren’t allowed to voice. If it were them they would want to know they had the choice of which surgeon to choose. That said they don’t want any more work and would rather see a system in place that reduced the tension and acrimony within these claims.

The Politicians Position: The politicians just want the campaign contributions to keep coming in. This isn’t brain surgery. Employees don’t contribute like the Iowa Medical Association contributes to political campaigns. And politicians don’t worry about “the employer” selecting their treating physicians. After all they get special handling by insurance companies. When did any politician not get to  select their doctors?

“Republican Sen. Pat Ward of West Des Moines said she thinks those are isolated incidents.

“There’s no question that misdiagnosis occurs on occasion and that’s a very sad thing,” Ward said.

Ward predicted that one of every 100 injured workers is satisfied with their care from their employer-chosen doctor. To change the law would add unnecessary expense for businesses, she said.”

I believe there is a better way.

The “Pool of Doctors” Solution: Here is a solution falling somewhere in between what both want. Let’s first set forth each of their positions. Any doctor could apply to the Iowa Industrial Commission for privileges to be in a workers’ compensation medical pool. Any doctor in the medical pool could be selected by the employee for appropriate treatment. The employers would have the right to object to any doctor in the pool but once into the pool the employee could select them for treatment.

A pool of doctors would give the employer the right to encourage all of their company doctors to submit their names into the pool. The employees would not be allowed to go outside the pool unless doctors within the pool were not qualified to treat the condition or didn’t have privileges in the hospital system where the employee resided. Physicians outside the pool could be selected by agreement or application to the Industrial Commission.

Truthfulness would be restored to this system and doctors like Dr. No Causation would find themselves out of work.

Who chooses the Medical Care? 

The employer provides medical care reasonably suited to treat the employee’s injury, and has the right to choose the medical care. If the employee is dissatisfied with the care offered, the employee should discuss the problem with the employer or insurance carrier. In certain situations the employee may wish to request alternate care. If the employer, or insurance carrier, does not allow alternate care, the employee (through appropriate proceedings) may apply to the workers' compensation commissioner for alternate medical care. (85.27)

If the employer-retained physician gives a rating of permanent impairment, which the employee feels is too low, the employee does have a right to another examination by a doctor of the employee’s choice at the employer’s expense. (85.39)

What types of benefits does the law provide?

Medical Benefits - The law provides for the payment of all reasonable and necessary medical care incurred to treat the injury. This includes reasonably necessary transportation expenses. Mileage for use of a private auto is reimbursed at a rate set by the state of Iowa, currently at 58.5 cents per mile. (85.27)

Under certain circumstances an employee who has to leave work for medical treatment may be eligible for payment of lost wages. (85.27)

While a contested case proceeding or a dispute on reasonableness of a fee is pending, the medical care provider cannot seek payment of its charges from the employee. (85.27)

Construction Safety: The risk of being electrocuted

A construction worker on a site in Europe was electrocuted when he came into contact with a live wire/cable on which he was working. It killed him and the general contractor was fined 300,000 Euros. You might wonder why the fine?

Electrical workers on a construction site must follow an established set of rules for protecting each other. They are not supposed to be working on energized lines. The rules are known as the “lockout/tagout” procedure rules.  (LOTO) The purpose of the rule is to protect workers from energized wires, cables and lines. What most people don’t understand is that workers can be a long ways away from the fuse box where energy to the plant wiring system is controlled. If a worker were to turn on the juice without notifying other workers who had turned it off, those other workers could be killed by electrocution. To prevent a worker who turns off the juice locks the fuse box and attaches his tag to the lock. This system if used properly will prevent electrocutions.

Now if another worker comes along and he too is going to work on the wiring system and needs it to be turned off, or de-energized, he will lock his lock with tag to the first electricians lockout-tagout. That way if the first worker comes back to the fuse box he will see the second electrician’s LOTO warning him that some other worker is working on the electrical system. Before the first electrician can turn the juice back on he first must locate the second LOTO electrician and get his approval.

It’s not unusual to have many LOTO’s on the fuse box. That protects everyone in line so they are not mistakenly electrocuted.

So why then is the General Contractor (the GC) in this case fined? In most construction contracts the GC is the ultimate authority that controls safety on the construction site. The GC has the right and responsibility to enforce safety practices. If workers are ignoring established safety practices it is the GC that must discipline the offender. In the case of busy job sites, it’s not unusual for the GC to look the other way in order to speed up the work. Deadlines looming can cause GC’s to ignore their duty to enforce safety rules. And when this happens it can be deadly.

On this job the GC was probably ignoring its duty to enforce the rules and the labor commission came down hard on them. Reputation does follow us.

With so many electrical workers in so many different jobs OSHA has a general rule for LOTO procedures. LOTO is so vitally important that schools exist that can teach the proper procedures that have to be followed.

There is even an online Hazmat OSHA LOTO Instructional Course. I’ll include the course curriculum outline below. Considering the benefits the $45.00 course fee is minimal.  The photographs on this site clearly show what you should expect to see with LOTO at the fuse box.

COURSE OBJECTIVES:

Upon successful completion of this course the student shall have satisfied the requirements for training in accordance with 29 CFR 1910.147 and other similar state OSHA regulations and will demonstrate competency and have an understanding of:

1.      Define what is meant by Lock Out Tag Out (LOTO or Lockout/Tagout) and when it is used.

2.      Identify the importance of LOTO.

3.      Understand the roles and responsibilities of those involved with LOTO including LOTO users, those who may come across LOTO, and employers.

4.      Know the requirements of the LOTO regulations and where to find them in 29 CFR1910.147.

5.      Know the different types of LOTO training and how they apply to the job.

6.      List the three parts of a LOTO program including the development of a written program, the training of employees and how and when to implement the LOTO program.

7.      Understand how and when LOTO “refresher” training is to be conducted.

8.      Understand and define the different types of energy that might be encountered using LOTO. This includes potential energy, kinetic energy, electrical, hydraulic, pneumatic, and water/gas energy.

9.      List the requirements of an Energy Control Program.

10.  Know how and when to properly apply locks and other devises as part of a LOTO program.

11.  Understand the advantages, disadvantages and limitations of locks and tags as part of a LOTO program.

12.  Be able to list the steps of applying LOTO on the job. This includes proper notification, awareness of energy hazards, controlling the hazards (including blanking and bleeding off energy), applying LOTO, performing the work, removing equipment used and LOTO equipment, restarting the equipment and making proper notifications.

13.  Understand considerations when working with outside contractors and LOTO.

For GC’s laminated posters explaining LOTO can be purchased for $25 to $30.00.

Personal Injury Zoo News from around the world

Building Collapses in Rockwell City, Iowa

Newton, Iowa Construction Site Wall Collapse Injures Three Workers

Three construction workers were injured on a job site in Newton, Iowa as a wall collapsed and causing the scaffolding to do the same. KCCI news reporters watched a videotape taken by a security camera from across the street at Dave’s Wholesale. The security camera footage shows the collapse, to what degree isn’t known or disclosed. The men worked for Boucher Masonry Co. from Boone, Iowa. IOSH is investigating the incident.

John Deere foundry worker electrocuted - Is this a lock-out-tag-out safety issue?

It appears the worker who was electrocuted at the John Deere Waterloo facility has died. The man, Daniel Gerdman, 22-years-of-age died on Tuesday while working at the foundry. Working on some lighting he was electrocuted. OSHA is investigating the incident. Gerdman was found at around 11:30 a.m.

Most people probably wonder why did this happen?  There is a simple answer that we've effectively advanced in may litigated cases. We just posted another blog about an electrician from Des Moines who died from being electrocuted on a job in Cedar Rapids. He was 24-years-old. Here is my article on the Injuryboard.com.

What might have prevented this 24-year-old Des Moines electrician from being killed by electrocution?

What caused the death of a 24 year old Des Moines electrician? That was the question surrounding the death of Chris Turney but now the autopsy has revealed that it was in fact caused by electrocution. Mr. Turney was standing on a metal scaffold working with electrical wires at the Hy-Vee under construction at College Square Mall in Cedar Rapids when it happened. OSHA is currently investigating and one has to ask how does something like this happen? The company Mr. Turney worked for; Kline Electric of Ankeny, was hired to install the new wiring for the store. Was this caused by a mistake of a co-worker, did Mr. Turney have proper training to be working in the area he was, or was this just a freak accident? Whatever the reason this is another regrettable example of the preventable loss of a young man in the workplace.

These are all preventable. Like the Turney electrocution, Gerdman’s dependents are also entitled to work comp. benefits and should investigate a third-party case.

See also my post on the Lombardi Law Firm website blog.  My news item contains a different video on lock-out tag-out safety rules.

Did this 24-year-old Iowa electrician die needlessly?

Construction Site Safety - In the news, worker deaths on the rise.

Construction accidents resulting in death have been more numerous lately. It may be a result of safety rules being ignored due to tighter deadlines resulting from the economic conditions we find ourselves. It doesn't matter in what countries the workers work the risk of death, wrongful death or being killed are prevalent in this high risk profession. People who come into contact with construction sites and those supporting the construction trades are also at risk.

Plane crash - 6 workers died on their way to the Plutonic Power Corp's Toba Inlet hydro power plant in South Thormanby Island, British Columbia. One worker miraculously who was asleep awoke and walked away from the burning plane wreckage. This is the second Grumman Goose plane to crash in Canada this year. Reuters of Canada also reported on this construction crew plane crash.

Heavy equipment overturn - A Colorado heavy equipment operator was killed when the crane he was driving went into a small ravine and creek near the construction site. Nov. 18, 2008. A video is available.

Second floor collapse while pouring concrete - Two workers rescued from under the ruble of a hospital construction site in Meridian, Mississippi. There were 12 to 15 workers on the floor when it collapsed. No fatalities reported.

Balance lost while installing windows on the seventh floor fall kills worker - While installing windows on the seventh floor of the construction site the worker lost his balance and fell to his death.  

Road construction worker hit by passing dump truck - Five years ago this occurred in Vineland, New Jersey. The driver of the dump truck has never been found.

A LeMars, Iowa construction worker was killed with a steel beam fell on him -  A 21 year old Storm Lake, Iowa man was killed.  S & L Construction of Storm Lake is building for Center Fresh Egg. Iowa OSHA is inspecting. In Iowa they are called IOSH. The worker is Jose Gustavo Sivrian, originally from El Salvatore.  The accident is being investigated not only by OSHA but along with the Plymouth County Sheriff's Office.

Subway collapse in China kills 4 workers - when a 75 meter long section collapsed trapping the workers. This is the Railway Construction Group.

Landslide at the Johor Baru construction site - killed two Indonesian workers who were building a hospital with their crew.  There is no mention of whether the construction practices being used at the site contributed to the earth and dirt instability.

Wall collapse in New Delhi, Indian killed one and injured two construction workers - Allegations have been leveled against the owner over illegal construction of the first floor level.

Dismantling a crane lead to a guardrail being cut on a platform attached to a tower crane - This New York construction site mishap caused the death of one worker and cost the two crane operator $50,000.00 and suspended licenses.

Hoisting materials and being under the load - This construction worker at a site in the town of San Pedro was killed when the pulley broke and the pallet of materials fell onto him. He was crushed by cement and tiles.  The investigation is pointing to defective nails used to secure the pulley to the fourth floor of the building under construction.

Exploding inert gas cylinders at a UK construction project kills one worker and injures another - "The blast at the Hertfordshire Data Centre on the Mundells Industrial Estate was described by fire officials as a "large scale incident," which investigators say was caused by a cylinder of argonite, (sic: perhaps aragonite) an inert gas used in data center fire suppression systems." Once ignited the cylinders became missiles firing and randomly flying about the site.

Lawrence, Massachusetts road construction site backing over accident kills a worker - at a highway paving project on I-495 a 31 year old worker was backed onto by a truck on the site. 

Equipment falling into trench as the ground under the excavator moving the heavy tank falls gave way or the equipment simply tipped over onto the worker burying him within the excavation.

Chula Vista construction worker killed by falling beam from crossbeam holding a wall - demolition work to make room for a new San Diego convention center.

Cab passenger driving past a construction area was killed by 200 foot high falling crane - Only 30 years of age and a promising life killed when the mast popped off and fell.  Follow the link to see photos of the construction area following the collapsed crane.  Also killed was a construction worker. Defective bolts could be the cause of the crane's mast coming off.

Repairing construction equipment kills worker when equipment pins him -  Grinding wheel of a large wood-chipping machine clogged, worker idles the engine, but didn't shut if off, worker in the repair process inadvertently engages lever that operates the chute, causing the chute to move and pinning the worker against a steel wall resulting in his suffocating to death.  The worker was 58 years of age.

Home under construction in Miami, collapsing concrete wall kills one worker and traps another for almost one hour.  Victim was 49-years-old.

U.S. Department of Labor indicates that in 2007 3.7 workers per one hundred thousand workers were killed. 

Deciding Negligence - Faulty Stove versus Poor Judgments

The dangers of doing laundry at Zeppelins Bar and Grill in Cedar Rapids

Workers Compensation: 43 year 66 year old mill worker killed

You’d think that working on the job for 43 years and being 66 years old would be a time for retirement, but in the case of Bill Drake it wasn’t. This man died at work when he fell onto tracks and a wood-loaded crane running on those same tracks struck and killed him. This was certainly a sad day at the International Paper Mill in South Augusta, Georgia.  A well respected member of the mill workers he certainly will be missed. We wish his family well.

Follow the first link to see photos of Mr. Drake.

For a birds-eye view of the paper mill follow this link to see the National Geological Survey aerial photograph.  The site is Wikimapia. The train tracks can be seen going through the center of the photographic image of International Paper.