Wednesday, July 31, 2013

Facebook Postings by Employee Doom Her FMLA Claim

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Sara Jaszczyszyn worked as a Customer Service Representative for Advantage Health Physician Network.  On August 31, 2009, she saw her physician about a recurrence of back pain related to a prior car accident and two prior surgeries.  She was unable to work the next day and presented a Work Release Form on September 3, 2009 from her physician, who indicated that she was totally incapacitated.
Jaszczyszyn returned to work on September 8, 2009. Her doctor submitted an FMLA certification on September 9, 2009, indicating that Jaszczyszyn was having intermittent flare-ups of back pain which, when active, made it impossible for her to work.  Jaszczyszyn seemed to treat the intermittent leave certification from her doctor as approval for continuous leave and stopped working on September 10, 2009.  She never returned to work.  She saw her doctor again on September 22, 2009, and the doctor indicated that she was disabled from September 10, 2009 to October 5, 2009.  Eight days later, he amended that note and said she was disabled from October 5, 2009 to October 26, 2009.
On October 3, 2009, Jaszczyszyn attended Pulaski Days, a Polish heritage festival.  She visited a number of Polish Halls with a group of her friends for a period of eight hours.  One friend shared 127 photos from the day’s events with Jaszczyszyn, who then posted them on her Facebook.  There was some dispute whether she was dancing or merely standing between two friends in one posting.
During that same weekend, Jaszcyszyn left several voicemails at work indicating that she would not be coming to work on Monday due to the pain she was in.  Some of her friends at work saw the postings on her Facebook site and shared them with her supervisor.  Jaszcyszyn was called into work to attend a meeting to discuss, in part, the postings on her Facebook.  She addressed her presence for eight hours at the festival by saying that no one told her this was prohibited.  She also said she was in pain at the festival.  When asked how she reconciled her activities at the festival with the fact that she was asserting she was too incapacitated to come to work, she was silent.
The company terminated her employment as a result of its concerns about FMLA fraud.  Jaszczyszyn then sued for alleged retaliation under the FMLA.  The Court noted that the company properly considered workplace fraud to be a serious issue.  The Court rejected her claim for retaliation:
While Jaszczyszyn relies heavily upon a significant amount of after-the-fact medical evidence (such as the deposition of her treating physician) in trying to cast Advantage’s justification as pretextual, Advantage’s investigation was adequate and turned in large part on Jaszczyszyn’s own behavior at the termination interview, which she does not address at all.  She did not refute Advantage’s honest belief that her behavior in the photos was inconsistent with her claims of total disability.  Thus, as a result of her fraudulent behavior, her claim of FMLA retaliation fails.
This case demonstrates once again that Facebook postings can often produce valuable evidence for employers in a variety of legal areas.  Further, it shows how important it is to read medical certifications carefully.  The initial certification was for intermittent leave, which promptly led to continuous leave contrary to the initial certification.  The case may be found at Jaszczyszyn v. Advantage Health Physician Network, 2012 U.S. App. LEXIS 23162 (6th Cir. 2012).


Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.



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Tuesday, July 30, 2013

Law Office of O'Toole & Sbarbaro, P.C. - Did you know?

  • in a workers' compensation dispute, the burden of proof is on the injured worker to demonstrate entitlement to benefits?
Under Colorado law, when a disagreement arises as to whether an injured worker is entitled to receive workers' compensation benefits, the final determination will be based on the individual facts of a claim and a preponderance of the evidence--that is--which side can offer the most convincing evidence as to how the injury occurred and whether benefits are due.  In practice, this generally means that when an insurance company has denied liability (responsibility) for payment of benefits, or has failed to respond, it will be necessary for the injured worker to move the claim forward (prosecute) by requesting a hearing and presenting sufficient evidence to prove that benefits should be paid. 
Because it is unlikely that either side will be permitted to introduce evidence after the hearing, it is important to be fully prepared and to comply with all (notice, filing and exchange of information) requirements.  For information about representing yourself at hearing, or for general information on the hearing process, see the brochure:    So, You are Thinking of   Representing Yourself in your Workers Compensation Case...    Also, the rules governing this process may be found under Rule VIII, Workers' Compensation Hearings.  In addition, a partial list of workers' compensation attorneys provided by the Colorado Bar Association, may be obtained by clicking on:  Workers' Compensation Attorney List
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Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

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Monday, July 29, 2013

Denver - Breathless




Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

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Friday, July 26, 2013

Law Office of O'Toole & Sbarbaro, P.C. - Did you know?

  • Workers' compensation is the oldest form of no-fault insurance?

Before workers' compensation law was established, there was little recourse for workers injured on the job. A worker could sue in court, but had to prove negligence. The outcome was uncertain and could take years to resolve. This was costly both to the employer and the worker, often with little benefit to either party.  The evolutionary move toward workers' compensation began during the Industrial Revolution as mechanization brought an increase in work-related injuries.  It was a new legal concept, liability without regard to fault.  First established in Germany in 1856 and adopted soon after by England and most of Western Europe, workers' compensation was enacted in Colorado in 1915. By 1920, all but eight states had workers' compensation laws.  The last state mandated workers' compensation coverage in 1947

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Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

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Thursday, July 25, 2013

Workers' Compensation History




Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

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Wednesday, July 24, 2013

CA WCAB Extends Deadline For Submitting Written Comments To Modifications To Proposed Rules Until August 9

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San Francisco, CA (WorkersCompensation.com) - On July 9, 2013, the Workers’ Compensation Appeals Board (WCAB) announced its intent to modify the text of proposed amendments to its Rules of Practice and Procedure (Rules) that had been the subject of a public hearing on April 16. The announcement stated that written comments regarding the proposed modifications would have to be received by the WCAB by 5 p.m. on July 25.
Following this announcement, some members of the workers’ compensation community requested the WCAB to extend the time for submitting written comments. The WCAB agrees that a limited extension of time is reasonable. Therefore, the WCAB will extend the time for submitting written comments by an additional 15 days to Friday, August 9 by 5 p.m. The WCAB will consider only comments it has received by that time.
As previously announced, the proposed modifications to the initially proposed Rules and related documents are posted on the WCAB’s website. The originally proposed new and amended Rules and related documents may also be found at this site.
Additionally, to facilitate further public comments, the WCAB is presently in the process of adding to its website all public comments it has received regarding the proposed Rules amendments. The documents to be posted will include the written comments the WCAB received on or before April 16, a transcript of the April 16, public hearing, and the written comments the WCAB has received in conjunction with the July 9 announcement. The posting of these written comments will be periodically updated until the August 9 closure of the written comment period.
The address for submission of comments by e-mail is WCABRules@dir.ca.gov. The address for submission of comments by mail is: Neil P. Sullivan, Assistant Secretary and Deputy Commissioner, Workers’ Compensation Appeals Board, P.O. Box 429459, San Francisco, CA 94142-9459. The address for submission of comments by delivery service or personal delivery is: Neil P. Sullivan, Assistant Secretary and Deputy Commissioner, Workers’ Compensation Appeals Board, 455 Golden Gate Avenue, Ninth Floor, San Francisco, CA 94102.

The WCAB will consider all written comments regarding the proposed Rules modifications it receives by Friday, August 9 at 5 p.m. It encourages all interested members of the workers’ compensation community to participate in this important process. 


Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

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Tuesday, July 23, 2013

Six Questions Every Teen Should Ask About Their Summer Job

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Augusta, ME (WorkersCompensation.com) - The US Department of Labor estimates that millions of young people under the age of 24 are likely to join the labor force this summer. Some will find their first part-time job while others will land something more permanent. 
In the excitement of a new job, though, it's important to remember that young, inexperienced workers are twice as likely to be injured on the job as their more experienced co-workers. According to the Centers for Disease Control, every year more than 50,000 youth are so badly injured at work that they need emergency medical treatment. And that figure doesn't include the numerous cuts, bruises, and strains that don't require a trip to the hospital. 
Why are these figures so high? Most experts point to inexperience and a lack of thorough job training. "It's pretty well established that inexperience can lead to injury," said Karl Siegfried, Assistant Vice President for Loss Control and Safety at workers' compensation insurer MEMIC. "Too often young workers want to impress their new boss and try to show that they can do things that they have never done before. That's where trouble can start. The good news is that there are proven ways to avoid the injuries that can result from inexperience." 
Siegfried said that formal on-the-job training is among the best ways to learn about job hazards as well as the safest methods for accomplishing the work.  Siegfried said that young workers and their parents should have an understanding of the safety risks associated with a new job. Most problems can be addressed by asking your employer a few simple questions before you get started: 
1)    What are the hazards in this job?   It's tough to keep yourself safe if you don't know what you should be keeping yourself safe from. Once you understand the hazards in your workplace, you can ensure that you're receiving proper training on managing them. 
2)    How much job safety training will I have?   Employers are required by law to provide job hazard training that's easy to follow. If you ever feel like you need a process explained further, don't hesitate or feel embarrassed to ask - it's always worth the extra time and an injury is far worse than any momentary embarrassment! 
3)    Will I need to use safety gear, and if so, how?   Employers may also be required by law to provide protective gear at no cost to you. Whether that means safety glasses, ear plugs, or something else, make sure you can take every necessary precaution. If safety equipment is available to you, make sure you know how to use or wear it correctly. 
4)    If I have health and safety concerns, who do I ask?   Whether it's your supervisor or a designated workplace safety coordinator, it's important for you to know who has the answers to your safety questions. Don't be afraid to speak up if you feel unsafe at any time during your workday. 
5)    What do I do in an emergency?   Be sure to review your workplace's emergency protocol. Where is the nearest fire exit to your workstation? Do you have a designated meeting spot once you're out of immediate danger? Ask whether your employer holds regular emergency drills. 
6)    What should I do if I get hurt at work?  It's important to report any injury you sustain in your workplace. Regardless of the injury's severity, your workplace safety contact will be able to help you with applying first aid and filling out any necessary paperwork. 
As your partner in workplace safety, MEMIC is committed to creating a work environment that's healthy and accessible for every employee, no matter their age or level of experience. With these questions, employees can build a foundation of safety knowledge that helps to reinforce everyday well being.

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.


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Monday, July 22, 2013

Fitness-For-Duty Exams in Workers' Compensation

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The words “fitness for duty” do not appear in the New Jersey Workers’ Compensation Act, but the issue is of paramount importance to employers and employees in many workers’ compensation cases.  In New Jersey the need for a fitness exam is often compelling because medical and temporary disability benefits end at maximal medical improvement often without any comment from the treating physician about whether the employee can return to work.  When workers’ compensation benefits end, the focus often turns next to whether the employee can return to work and perform the essential job functions.  This is not for the Judge of Compensation to decide in New Jersey.
When can an employer require a fitness-for-duty examination in a workers’ compensation setting?
Practitioners must differentiate between employees who are out of work and employees who are working.  When an employee seeks to return to work following a workers’ compensation absence and there are restrictions imposed by the treating doctor, a fitness-for-duty exam is appropriate.  In fact, New Jersey physicians often seek guidance from FCEs, functional capacity examinations.  In contrast, when an employee with a workers’ compensation claim is working, an employer cannot request a fitness exam absent a business reason. A medical evaluation of an employee can be required by an employer under the Americans with Disabilities Act and under state disability law. The ADA standard is “job related and consistent with business necessity.” 42 U.S.C. 12112(d)(4).  In other words, the employer must have a legitimate reason to require an existing employee who is working to attend a fitness exam.  Examples might be if the employee is expressing difficulty or pain on the job, is limping while working, or is asking for accommodations.
It is important to appreciate differences between the New Jersey Workers’ Compensation Act and laws in other states.  Many states have a requirement for vocational rehabilitation.  New Jersey does not.  Awards for partial permanent disability in New Jersey are not generally dependent on how long an employee has been out of work but on the level of functional loss in the injured body member.  New Jersey compensation law does not provide job protection, except against retaliation for filing a workers’ compensation claim.  Temporary disability benefits and medical benefits end at maximal medical improvement in New Jersey.  Whether the employee returns to work may not matter all that much as far as the outcome of a workers’ compensation claim but it matters to the employee and employer for obvious reasons.
Workers’ compensation cases suddenly merge into labor law at the return to work stage.  It is outside the power of a Judge of Compensation to order an employer to return an employee to work.  However, employees have rights under the Americans with Disabilities Act, the Family and Medical Leave Act, and the New Jersey Law Against Discrimination that impact on return-to-work status.  Many workers’ compensation claimants are covered under the ADA and NJLAD but these laws do not automatically mean the employee must be reinstated.  An employee with a disability must be able to perform the essential functions of the job with or without reasonable accommodation.
How then do employers decide whether an employee who has been out of work with a serious injury is fit for duty?
Medical and legal guidance is crucial.  From a medical vantage point, employers can reach out to treating doctors, occupational physicians or physiatrists for advice on fitness for duty.  As mentioned above, FCEs are a wonderful tool that provide objective and scientific information about ability to perform essential functions. For this reason, treating doctors routinely ask for FCEs before giving opinions on restrictions and ability to perform job duties. From a legal standpoint, it is important to consider the application of disability and leave laws that may apply.
            Here are some common traps that employers fall into in fitness assessments:
            * The Ambivalent Treating Doctor Syndrome
 Quite often the treating doctor imposes serious job restrictions that carry on for many months.  There may be severe restrictions against lifting, bending, reaching and performing other physical functions. Light duty may be offered. After maximal medical improvement is reached and compensation benefits end, the employee will often contact the employer to return to work. When the employer expresses concerns about the medical restrictions, a short note may suddenly appear from the treating doctorremoving all restrictions.  This stunning turn of events leaves employers shaking their heads.
            * The “Wing It” Return-To-Work Note
 New Jersey is blessed with highly skilled surgeons in the workers’ compensation arena.  However, surgeons are not always the best choice when it comes to deciding whether the employee can do a particularly difficult job.  A good fitness-for-duty examination requires time, information and medical expertise.  The job description must be read and considered, and the physician must speak with the employee about job duties.  In addition, FCEs should be analyzed to see that the testing reflects the actual job duties to be performed. Cryptic medical notes following a serious surgery stating, “Bill may return to work full duty” without analysis or any indication that job description has been analyzed are more often than not “wing-it” notes.  There are risks to the employee who is returned to a job that he or she cannot safely perform, and a well-intentioned “wing-it” note can do more harm than good.
            * Reflexively Turning to Treating Doctors
When it comes to assessing fitness for duty, the best choice is generally an occupational physician or physiatrist who specializes in this area of medicine and has an understanding of reasonable accommodation requirements. These experts often have training in biomechanics and are willing to expend the time it takes to fully appreciate the job duties and consider possible accommodations. There is simply no substitute for thorough analysis. The idea that fitness assessment is as simple as scribbling on a note pad could not be further from the truth.  Yet all practitioners continue to see treating doctors hurriedly write “full duty” without any analysis at all of the job requirements or previous restrictions.
            * Asking the Comp Adjuster Whether the Employer Must Reinstate
 This is also a very common mistake that employers make in New Jersey.  The reason this happens is that many employers erroneously think that return-to-work issues are decided in comp court.  Almost every adjuster has been asked more than once for advice from an employer on whether the employer can terminate or must reinstate.  This is a complex medical/legal inquiry with significant labor law implications that should be put to house counsel or outside counsel for guidance.
Developing a return-to-work team is the best solution. There is an important role on this team for counsel, HR managers, claims professionals, supervisors, nurse case managers, and medical experts.  It is a fact of life that many employees post-injury cannot return to their former job while many others can and should be reinstated.  The process is complex but can be handled effectively with a consistent and comprehensive approach.






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Friday, July 12, 2013

Insurance Fraudster Proves Twitter Not Just For Smart People Anymore

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60 year old Wanda Podgurski apparently thought she had it made. After claiming a fake injury in her home and collecting money from no less than seven insurance companies, she skipped town in the middle of her insurance fraud trial and headed for the hills. She vanished into that dark night, forfeiting $500,000 bail in the process. The fact that the judge in the trial sentenced her to 20 years in prison in absentia was almost moot. She was, as they say, “in the wind”. Histoire. Hasta la Bye Bye.
For five glorious months, she was free and clear, with authorities clueless to her whereabouts. Well, not entirely clueless. You see, our miscreant fraudster couldn’t resist taunting them with her Twitter account. While on the lamb, she sent no less than 10 tweets, including statements like “help find me before I con anyone else” and, my personal favorite, “Catch me if you can”.
Turns out they could. And they did; based on electronic Twitter bread crumbs that led them right to her. You see, Twitter has geo-tagging capabilities supported by many mobile devices using Location Services. If you don’t turn it off, it carries specific GPS info with every sweet tweet you complete.
What a dumbass.
On July 4th, in what can only be considered an ironic “removal of Independence”, day for her, a Fugitive Task Force found her in a retirement resort in Rosarito Beach, Mexico, just south of San Diego, from whence she came. Turns out she didn’t go that far at all. She wasn’t in the wind so much as she was sitting around passing it, apparently. Her hot air cooled rather quickly I would presume.
She certainly was capable of more exotic locales. She is an experienced traveler – in fact that is one thing that tipped investigators to her fraudulent activities to begin with. The Los Angeles Times reported investigators discovered that she traveled to the Dominican Republic, New York, Seattle, Boston and other locations during the time she claimed to be completely disabled and in need of in home care. For all we know there is a Youtube video of her skydiving or bungee jumping during those trips. Certainly would be an action that fits in her wheelhouse. But, while we delight in the gloriousschadenfreude that Ms. Podgurski provides us, we recognize that this is the smaller part of this story.
Ultimately, this story is a huge boon for stupid people everywhere. Ms. Podgurski is a barrier breaker, shattering the myth that the Twittersphere is merely an electronic resort for the cranially gifted. No longer will Twitter be reserved for the uber intelligentsia; a restricted playground for those who have benefitted unfairly in the realm of intellectual distribution. No, it will now be a communication vehicle for the great unwashed, the ignorant masses of our time.
Get ready, Twitter. If you thought intellectually gifted persons could cram an elegantly entertaining tale into 140 character increments, you haven’t seen anything yet. Just wait till Bubba meets tweet street.  It makes complete sense, when you think about it. Twitter is ideal for people who cannot spell or those who are incapable of using vowels when they write. Thank you, Wanda. This changes everything, indeed.


Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

Visit: workerscompensationdenverlawyer.com
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Thursday, July 11, 2013

Citations Follow Incident In Which Crane Dropped Load, Seriously Injuring A Worker

Denver, CO (WorkersCompensation.com) - The U.S. Department of Labor's Occupational Safety and Health Administration has cited G2K Corp., doing business as GBC Inc. in Lakewood with 13 safety violations. The violations follow a March incident in which a worker was seriously injured when an overhead crane dropped a load, pinning him to the ground and resulting in amputation at the knee. The citations include one willful and one repeat violation. They carry $82,600 in proposed penalties.
The willful violation was for failing to use an approved lifting device to attach the load to the hook of the overhead crane. An unapproved C-clamp slid off a 2,600-pound press brake ram as it was lifted, causing the ram to fall to the ground and pin the worker. A willful violation is one committed with intentional knowledge of or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health.
The repeat violation was for failing to guard a lathe and two milling machines. A repeat violation exists when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years. A similar violation was cited in 2009 at the Lakewood work site.
Some of the eight serious violations involve forklift-powered industrial trucks which include failing to provide seat belts; conduct daily inspections and train workers. The remaining serious violations include failure to inspect lifting slings and remove damaged slings from service; failing to secure grinders and drill presses to the floor; properly adjust work rests and peripheral guards on bench grinders; reduce compressed air used for cleaning purposes to less than 30 psi; and correct hazard communication program deficiencies. These deficiencies include failing to identify all hazardous chemicals in the workplace, failing to ensure chemical containers were properly labeled and failing to provide material safety data sheets for all chemicals. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.
Three other-than-serious violations involve failing to label exit doors, failing to mark voltage ratings on electrical panels and make them accessible and failing to label circuit breakers. An other-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.
"The employers' lack of preparedness is unconscionable, and OSHA will not tolerate exposing workers to such negligence," said David Nelson, OSHA's Englewood area director.
GBC Inc. is a custom metal fabricator and machining facility that employs approximately 50 workers. It has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission.

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

Visit: workerscompensationdenverlawyer.com



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Tuesday, July 9, 2013

Court Okays Facebook Party Photos in Workers' Comp Claim - Law Office of O'Toole & Sbarbaro, P.C. Worker's Comp Blog

(Image credit: Arkansas Appeals Court)
An appeals court  has ruled that photos on Facebook and Myspace of a man “drinking and partying” can be used as evidence to deny him further workers compensation claims.
At the center of the suit is  Zackery Clement, who suffered a hernia  March 12, 2009 after a refrigerator fell on him while on the job at Johnson’s Warehouse Showroom in Pine Bluff,  Ark.  Clement, who was compensated for medical expenses and received temporary total-disability benefits for more than a year, was seeking an extension of benefits following three surgeries as a result of the injury.
The story was first reported by Courthouse News Service.
An administrative law judge and the Arkansas Compensation Commission denied Clement’s application for additional benefits, and Clement, 27, was hoping the Arkansas Court of Appeals would reverse the ruling. He argued that he needed further medical treatment and disability payments because of “excruciating pain.”
Key to Clement’s appeal was his request that the court ban the party photos. In his appeal, Clement’s legal team argued the photos were unrelated to medical treatment and “a disgrace to the dignity of the workers compensations proceedings and the legal system.”
“Allowing those Facebook photos for the proceeding is an injustice because it takes away from the dignity of the working class,” said Steven McNeely, the attorney for Clement. “That had nothing to do with whether or not he had an hernia. It’s irrelevant, immaterial and prejudicial. It should be about whether Zack needed additional treatment.”
A pdf of some of the images can be found here.
Instead, the appeals court agreed with previous rulings, which denied a request for additional treatment after diagnostic tests showed “no recurrent hernia and surgery to explore the scrotum” and saw no abuse by the courts in allowing the photos.
In denying Clement’s request for additional compensation and treatment, the court ruled in favor of the use of Facebook photos as a evidence.
In an opinion, written by Judge David M. Glover, the Arkansas Court of Appeals states: “We find no abuse of discretion in the allowance of photographs. Clement contended that he was in excruciating pain, but these pictures show him drinking and partying.”
“Certainly these pictures could have a bearing on a Clement’s credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the Commission, “ Glover continues. “We hold that there was not an abuse of discretion in allowing the photographs.”
A spokesperson for Johnson’s Warehouse did not immediately return our request for comment.
Story by ABC News, Original Source
Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

Visit: workerscompensationdenverlawyer.com



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Monday, July 8, 2013

Calif. Workers'-Comp Fraudster Goes From Crutches To High Heels in Same Day



Video of Modupe Martin ditching crutches to meet a man for a park tryst helped convict her, DA said.
01/10/2013


Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

Visit: http://www.injurydenverlawyer.com

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Biden Investigated For Questionable Workers’ Comp Claim


WASHINGTON—Weeks after accepting a workers’ compensation settlement for a personal injury he purportedly sustained on the job, Vice President Joe Biden is under investigation for allegedly filing a fraudulent claim, sources confirmed Friday. “Can you believe it? I wrench the hell out of my back while showing a diplomat around the Rose Garden, and now they’re trying to take away my disability check?” a back brace–wearing Biden said of the ongoing probe into his settlement, noting that he expects to be “on the mend” for at least a few months. “I got this jerk-off from the insurance company snooping around, and I keep telling him, ‘Listen, buddy, if you don’t get off my case, I’m likely to re-aggravate my injury and be off the job even longer.’ I’d love to get back to work, but right now my lawyer says the best thing for me to do is take it easy and keep collecting those checks, so that’s exactly what Uncle Joe’s gonna do.” Biden added that while he’s been treating his injury with “a few cold ones, [he] could definitely use some Oxy to help put out the fire.

 May 24, 2013 (Humor, The Onion)
Original Story Here


Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

Visit: injurydenverlawyer.com


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Friday, July 5, 2013

Employer Steps to Eliminate Workers' Compensation Fraud

July 1, 2013 by 

Employers need to stay on top of fraud by proper investigation. Many examples of all kinds of clever schemes, plans, ideas and criminal behavior have been featured in our blog. 

Employers need to be aware of the lengths a dishonest worker may go to fraudulently obtain benefits. Therefore, employees need to be aware of the company’s intention to vigorously pursue all suspicious workers’ compensation claims. It costs a lot less to find, investigate and stop fraud and abuse then to let a healthy employee illegally collect benefits. If you think a claim is fraudulent, then you need to tell your insurance adjuster immediately.

When to Investigate a Claim
  •          To verify the extent of an employee’s disability
  •          If the injury is not consistent with nature of business
  •          To substantiate the ability of an employee to return to work or perform transitional duty
  •          To verify whether the employee is engaged in outside employment
  •          To prove insurance fraud
  •          To reduce (or increase) the amount of a settlement
  •          To deter future fraudulent activity

Work closely with your third party administrator to request an investigation. Investigations are not a one-size-fits-all arrangement. Different characteristics of a claim may require different types of investigation. Fraud will not be found in every investigation. However, never investigating will be more costly than investigating every claim.

Types of Investigation

General Investigation
This is an in-depth undertaking, compiling concrete evidence to determine the cause of the accident. To do this you would obtain:
  •          witness statements
  •          documents supporting the accident
  •          photographs

Activity Check
This is a brief surveillance where an investigator makes inquiries to friends and neighbors about the claimant’s daily activities. This may include documenting activities by videotape.

Sub-Rosa Investigation
This is a more comprehensive investigation documenting the employee’s activity level by obtaining a cross-section of the person’s activities on film. Use this investigation judiciously. Hire only qualified, bonded investigation firms. Monitor the investigation closely.
Virtual Investigation
This is where a professional conducts an on-line search of social media and other public sites to uncover an employee’s activities that are inconsistent with their claimed physical and medical restrictions. This may include photos of the employee participating in hobbies, sports or other activities, such as working at other jobs.

A Case Study
A California parks worker was apprehended as the result of an investigation conducted by the California Department of Insurance.  California charged the worker with presenting a false or fraudulent insurance claim and making false or fraudulent statements to his employer and to his treating physicians.

Over a five-year period, the man reportedly told his doctors:
  •          He was unemployed
  •          His injury continued to worsen
  •          He could not walk or walked with great difficulty, pain and limping, even after surgery to repair the injury
  •          He made similar statements under oath during a deposition taken when he filed for workers’ compensation.

What an investigation found
  • Undercover surveillance video captured the individual walking normally and bearing weight on his left ankle with no indications of pain
  • He was videotaped performing work-related activities at an auto-repair shop
  • He made inconsistent statements and material misrepresentations regarding the severity of his industrial injury and his employment status during appointments with physicians treating and/or evaluating him
  • These inconsistencies were in his sworn deposition testimony taken to file a false workers’ comp insurance claim with the employer’s third-party administrator.

The cost to the employer of his falsely receiving workers’ compensation benefits: $170,000
            $38,200 in indemnity benefits
            $23,300 in temporary total disability benefits
            $14,800 in permanent disability benefits
            $38,500 in medical treatment
            $  3,600 in vocational rehabilitation benefits
            $50,400 in legal expenses, defense costs and surveillance/investigation

What was the injury?
He “rolled” his left ankle while painting lines at a tennis court in a city-owned park.
Is anyone asking why it took FIVE YEARS to bring this worker to justice?

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com

©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

Read more: www.ReduceYourWorkersComp.com Employer Steps to Eliminate Workers Compensation Fraud - Reduce Your Workers Compensation Insurance Coverage Costs with Timely Information for Employers | Work Comp Roundup http://blog.reduceyourworkerscomp.com/2013/07/employer-steps-to-eliminate-workers-compensation-fraud/#ixzz2YBWnmpun
Copyright Amaxx Risk Solutions, Inc.
Under Creative Commons License: Attribution Non-Commercial No Derivatives


Original Source

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.
Phone: 303-595-4777
We are located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

Disclaimer 
Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

Visit: workerscompensationdenverlawyer.com


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