Friday, October 25, 2013

Kids Say the Darnedest Things - Congress

For your Friday needs, the following comes from the Cherry Creek Chronicle.
These are a few humorous answers given by students from 5th and 6th grade on history tests.

Delegates from the original 13 states formed the Contended Congress. Thomas Jefferson, a Virgin, and Benjamin Franklin were two singers of the Declaration of Independence. Franklin discovered electricity by rubbing two cats backward and also declared, "A horse divided against itself cannot stand." He was a naturalist for sure. Franklin died in 1790 and is still dead.

On the night of April 14, 1865, Lincoln went to the theater and got shot in his seat by one of the actors in a moving picture show. They believe the assinator was John Wilkes Booth, a supposingly insane actor. This ruined Booth's career.


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Phone: 303-595-4777
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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, October 24, 2013

America, why I love her.


America, why I love her. - Click here to watch.

Contact Neil O'Toole and John Sbarbaro
Phone: 303-595-4777
Located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

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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, October 21, 2013

LAANE, Allies Secure "Jobs to Move America" Win in Chicago

Victory Will Encourage U.S. Jobs and Opportunities
for Unemployed Workers


LAANE's new national campaign, "Jobs to Move America," won a major victory yesterday that lays the groundwork for similar wins in cities across the country.

The Chicago Transit Authority (CTA) asked companies vying for a $2 billion transit contract to disclose plans to create American jobs. CTA's move encourages companies for the first time to develop comprehensive American jobs programs in their bids and to implement them if awarded the contract - a chain reaction which could create as many as 20,000 good American manufacturing and related jobs, according to University of Massachusetts, Amherst economists.


The Jobs to Move America coalition met with CTA officials and Chicago Mayor Rahm Emanuel earlier this year, urging them to incorporate an American jobs plan into the purchase and manufacture of 854 rapid transit cars. Over the next several years, Jobs to Move America will be asking public transportation agencies around the nation to use public dollars to generate American jobs and create opportunities for unemployed American workers including veterans, single parents and residents of low-income communities.

Spearheaded by LAANE, the Jobs to Move America coalition unites community, labor, philanthropic, academic and environmental organizations as well as small businesses to advocate for the manufacture of clean, high-quality rail cars and buses in America. Transit agencies currently spend $5.4 billion American taxpayer dollars on bus and rail car purchases each year, most of which goes to big companies that produce large portions of our buses and trains overseas.


Yesterday's Chicago victory builds on our first success, when the Los Angeles Metropolitan Transportation Authority adopted the Jobs to Move America plan for a $305 million contract to build 550 clean-fuel buses in early 2013. LA Metro awarded the contract to New Flyer Industries, and the company added 150 new jobs to their factory in Minnesota and agreed to build a new service and assembly center in Los Angeles, which will employ 50 more American workers.


Stay tuned as we continue to roll out our Jobs to Move America campaign.


Warmly,

Madeline Janis

LAANE National Policy Director


LAANE is a leading advocacy organization dedicated to building a new economy for all. Combining dynamic research, innovative public policy and the organizing of broad alliances, LAANE promotes a new economic approach based on good jobs, thriving communities and a healthy environment.

Contact Neil O'Toole and John Sbarbaro
Phone: 303-595-4777
Located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

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Tuesday, October 15, 2013

POLL: AMERICANS DIVIDED OVER...

POSTED BY 
WASHINGTON (The Borowitz Report)—As the partial government shutdown grinds on into its twelfth day, Americans remain deeply divided over what kind of wild animal they would most like to see Congress mauled by, according to a new poll released today.
While a majority of Americans say they would enjoy seeing Congress torn limb from limb by a ferocious bear, there is disagreement over which species of bear would be best suited for that assignment.
When asked, “What kind of bear would do the best job of savaging Congress with its fearsome paws?,” Americans gave grizzly bears the highest job-approval rating, followed by polar bears, and by black bears in a distant third.
But the poll showed that there was also strong support for the idea of Congress being set upon by a pack of rapacious animals, with rabid hyenas the first choice of many respondents, followed by feral dogs and cats.
While insatiable, bloodthirsty mammals were most often cited as the animals Americans would like to see eviscerate Congress, there was significant support for another scenario, involving Congress being consumed by a swarm of predatory insects.
Fifteen per cent of those surveyed “strongly agreed” with the statement, “Being torn limb from limb by a grizzly bear or devoured by a pack of rabid hyenas is too good for these people. They should be eaten, very slowly, by a colony of hungry fire ants. Yes, that’s it—fire ants. That would be amazing.”
Original Source
Contact Neil O'Toole and John Sbarbaro
at the Law Office of O'Toole & Sbarbaro, P.C.
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Monday, October 14, 2013

Woman Hurt During Sex Wins Workers' Comp Suit

By John Johnson,  Newser Staff

(NEWSER) – It might not be the stuff of workers' rights fights of yore, but it's still a victory. Of sorts. An Australian judge has ruled that a woman who got injured during sex is entitled to workers' comp, reports news.com.au. It seems she was out of town on business and brought a friend back to her hotel room, and a light fixture fell on her during the throes of passion. She sued after the government, her employer, declined to pay for her injuries.
"If the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation,” wrote the federal judge. She shouldn't be disqualified just because she was having sex, he declared. It's an "ordinary incident of life." Gawker notes an ironic twist: She works for the government agency in charge of monitoring occupational health and safety.

Original Source
Neil O'Toole and John Sbarbaro.
Contact them at the Law Office of O'Toole & Sbarbaro, P.C.
Phone: 303-595-4777
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, October 11, 2013

Military death benefits to be restored

The U.S. House voted to provide military families with death benefits delayed by the government shutdown, but prospects for the same action in the Senate remained unclear.


Outrage over a delay in death benefits to families of fallen servicemembers prompted Congress and the Pentagon on Wednesday to hastily restore the payments as the latest unintended fallout from a government shutdown embarrassed leaders on both sides.
The Pentagon reached an agreement with the non-profit Fisher House Foundation to restore for military families $100,000 death benefits that have been stalled by the shutdown, which enters its 10th day today.
The House voted 425-0 to restore the benefit, but prospects for the same action in the Senate remained unclear.
The actions came as Defense Secretary Chuck Hagel flew to Dover Air Force Base, Del., to meet, before television cameras, the remains of four soldiers killed Sunday in a roadside bomb blast in Afghanistan. 
Along with a 19-year-old Marine and a 27-year-old Army specialist who both died Saturday, they are among the first whose families faced delays of the $100,000 death gratuity along with other expenses unless funding was restored or the government reopened.
"I am offended, outraged and embarrassed that the government shutdown had prevented the Department of Defense from fulfilling this sacred responsibility in a timely manner," Hagel said in announcing the contract with Fisher House.
Hsaid the foundation, best known for building family residences at military hospitals, will be reimbursed by the Pentagon after the shutdown ends.
As he made the announcement, Congress worked to restore the delayed payments, which have become a symbol of government paralyzed by opposing political views, unable to provide earned benefits even for those who have given their lives for their country.
The death benefits actions were the latest policy shift in the shutdown. About half of the Defense Department's civilian employees were furloughed, but Hagel ordered nearly all 350,000 back on the job. An estimated 450,000 federal workers are idled at agencies responsible for items as diverse as food inspection and national parks, although all employees are eventually expected to receive full back pay. Other furloughed federal employees are trickling back to work.
Even as the death benefits issue was resolved, a broader threat continues. A total of $6.25 billion in veterans benefits could be delayed to more than 5 million veterans, troops, families and children of deceased military members if the shutdown continues through the end of October, according to Veterans Affairs Secretary Eric Shinseki.
"I just didn't think you would allow this to happen," Shinseki told members of Congress during testimony Wednesday. "This is not a game."
As Congress grappled with how to keep earned benefits flowing to those who have served in uniform, events became a mix of political theater, recriminations and a litany of dire consequences should the shutdown continue.
Shinseki, a retired four-star general who took the VA helm in 2009, said the budget standoff comes as younger veterans are suffering complex health and behavioral issues after more than a decade of war in Iraq and Afghanistan.
"Members of this latest generation of veterans are enrolling in VA at higher rates than ever before," Shinseki testified. "They, along with the veterans of every preceding generation, will be harmed if the shutdown continues."
As the shutdown continues, House Republicans have passed legislation that would fund individual government departments or specific needs while Democrats argue that the full government should be reopened.
"What's happening now is the House of Representatives — which refuses to reopen the government — is scurrying to pass a little bill to take care of these families," Senate Majority Whip Dick Durbin, D-Ill., said. "It isn't nearly enough, because the embarrassment of this government shutdown goes beyond this grievous situation with these bereaving families."
According to Durbin, 17 servicemembers have died since the shutdown began, including five over the weekend.
House Republicans have approved piecemeal funding bills that would reopen popular government programs and facilities, but only one measure — to ensure the U.S. military is paid during the shutdown — has been approved by the Senate and signed by President Obama.
In an emotional floor debate, House Republicans blamed the Obama administration for the lapse in death benefits. "This is a disgrace. An intentional policy of pain," said Rep. Joe Wilson, R-S.C., a veteran.
"They broke a sacred trust with our U.S. men and women who are on the front lines," said Rep. Duncan Hunter, R-Calif., also a veteran.
House Democrats joined with Republicans in support of the measure, but Rep. Pete Visclosky, D-Ind., the top Democrat on the Defense Appropriations panel, called on the House to reopen the entire federal government.
Shinseki said 70% of the VA — devoted to providing veterans with health care — remains open because of advanced funding approval. But departments dealing with benefits and the operation of national cemeteries remain unfunded, and money is running out.
About 7,800 benefits workers were placed on furlough this week, and 13,000 more will be sent home later this month, leaving a skeleton crew of about 1,100 if government operations are not fully restored, Shinseki testified.
At that point, he said, monthly checks for compensation, pension, vocational rehabilitation, education and other benefits might not go out as scheduled Nov. 1.
That could affect the 5.18 million veterans, servicemembers, orphaned children and spouses of troops who have lost their lives, he said.
Senate Chaplain Barry Black, a retired Navy rear admiral, used his daily opening prayer in the Senate chamber to criticize lawmakers for the lapse in death benefits, underscoring the emotional tenor of the debate. "Lord, when our federal shutdown delays payments of death benefits to the families of children dying on faraway battlefields, it's time for our lawmakers to say enough is enough."

Original Source

Let attorneys: Neil O'Toole and John Sbarbaro help you with your case today!
Contact them at the Law Office of O'Toole & Sbarbaro, P.C.
Phone: 303-595-4777
Located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

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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, October 10, 2013

Getting Screwed

An intoxicated worker, who had been employed by an industrial manufacturer for over 5 years, had his glove snagged by a screw. It pulled his hand into a large machine leaving him with no choice but to amputate his arm below the elbow. The insurance company denied the claim stating that the accident was caused by his altered state. It was then presented in court that the employee was a highly functioning, life-long alcoholic who had been sufficiently able to operate the machinery without injury for many years. The court ruled that he was coherent and aware in his work environment (even after consuming large amounts of alcohol) and that the protruding screw which had just been put onto the machine was the reason for the accident.


Let attorneys: Neil O'Toole and John Sbarbaro help you with your case today!
Contact them at the Law Office of O'Toole & Sbarbaro, P.C.
Phone: 303-595-4777
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, October 9, 2013

Workplace Wellness and Recovery May Improve Productivity and Insure Business Survival


A recent article titled Fuse Workplace Wellness Programs With  Recovery, by Lisa Firestone, helps employers in this economy by explaining that maximum efficiency and productivity is essential for continued growth and even survival. Firestone is president and founder of Managed Care Advisors Inc., a woman-owned, employee benefits and disability management consulting and full service workers’ compensation case management company.
Firestone writes that more and more employers are engaging in worksite wellness programs that lower health care costs. “In fact, according to American Journal of Health Promotion every $1 invested in a corporate wellness program returns $4 in reduced health care costs and $5 in reduced absenteeism over a period of three to five years,” she writes. [WCx]
The complete article, which can be found here, indicates by targeting and improving employee population health risk factors, worksite wellness programs reduce absenteeism, increase productivity, reduce injuries and improve employee morale and loyalty. Though most wellness initiatives have been focused on reducing risk factors in a working population with the goal of lowering costs and improving productivity, Firestone writes “leaving out those employees who may very well be at greatest risk for long-term disability and significant and ongoing health care expenditures – workers’ compensation claimants. I am in no way downplaying the importance of prevention, or the advantages of a population-based worksite wellness program, in fact, quite the opposite. What I am suggesting is that there is great benefit to be gained for organizations that broaden the scope and focus of their wellness programs to include individuals recovering from work injuries or illnesses.”
Firestone includes these other points in her article:
1. Why not target the recovery period after a work-related injury as an opportune time to introduce or maintain wellness activities?
2. It is essential that the wellness program adapt with the employee and provide programming and support to meet the employee.
3. If your health insurance and work comp programs are handled separately try to get the two departments work together to institute a wellness program.
4. There are significant resources and information readily available to assist in the implementation and management of effective wellness initiatives.[WCx]

Let attorneys: Neil O'Toole and John Sbarbaro help you with your case today!
Contact them at the Law Office of O'Toole & Sbarbaro, P.C.
Phone: 303-595-4777
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, October 8, 2013

Washington Halfway House Operator Nabbed On Workers Comp Fraud

By 

Running a halfway house at times comes with a number of stigmas that can be hard to fight. Allegedly defrauding one’s state out of more than $90,000 in workers compensation benefits can be even worse.

According to the Washington State Department of Labor and Industries (L&I), that is just what one individual is accused of.

Judy Darlene Chafin, 61, was charged recently in Lewis County Superior Court with one count of first-degree theft and 30 counts of forgery. The Chehalis woman received notice of the charges while in court on an unrelated drug distribution case and was allowed to remain free while the new charges are pending, according to the Lewis County Prosecutor’s office.

The charges resulted from a Department of Labor & Industries investigation into Chafin’s collecting more than $90,000 in state workers comp benefits from the fall of 2006 to August 2013.


Defendant Reportedly Injured While Working as Caregiver

Authorities say Chafin began receiving wage-replacement payments after suffering an on-the-job injury in September 2006 while working as a caregiver at Tiffin House, a long-term care home in Centralia that she did not own.

According to charging papers, Chafin submitted dozens of workers’ comp claims stating that she could not work due to the injury. In reality, Lewis County prosecutors allege, Chafin had been operating The House of the Rising Son and other homes in the Chehalis and Centralia areas for released prisoners and homeless people since the latter half of 2006.


Allegations Include Misrepresentation

Charging papers contend she provided medical care to residents, received payments from Department of Corrections to house released offenders, and represented herself as the homes’ operator when dealing with government officials.

Last year, the city of Chehalis and Lewis County began filing zoning and health-code complaints against the facilities, and none is believed to be still operating.

The first-degree theft charge carries a maximum sentence of 10 years in prison, plus fines and court costs. The charge also includes three “aggravating” circumstances contending it’s a crime of sophistication, a major economic offense, and abuse of a position of trust. These factors could result in more prison time than under standard sentencing guidelines.

Each forgery charge carries a maximum sentence of five years in prison, plus fines and court costs.

Original Source
Let attorneys: Neil O'Toole and John Sbarbaro help you with your case today!
Contact them at the Law Office of O'Toole & Sbarbaro, P.C.
Phone: 303-595-4777
Located in the Denver Metro area.
226 West 12th Avenue Denver, Colorado 80204

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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, October 4, 2013

Bill Creating Clear Guidelines In Dispensing of Opioid Medications to Be Introduced in New Jersey Senate

Opioid medications have become a major problem in the New Jersey workers’ compensation system.  The number of workers being prescribed opioids has increased dramatically along with other attendant issues, such as addictions to the medications, excessive periods of use, and large numbers of unused opioid pills.  Every workers’ compensation professional can attest to these and other problems with opioid medications, including cases where urine testing shows no trace of opioids in the system despite repeated renewals of prescriptions.

            A draft of a bill to be introduced in the New Jersey Senate proposes that medical expenses shall not include coverage of opioid drugs unless the prescribing doctor does the following:

            1) takes a thorough medical history and physical examination focusing on the cause of the patient’s pain;

            2) does a complete assessment of the potential addiction of the patient to opioids, which would include a baseline urine test and assessment of past and current depression, anxiety disorders and other mood disorders associated with risk of opioid abuse;

            3) provides a written treatment plan with measurable objectives, a list of all medications being taken and dosages, a justification for the continued use of opioid medications, a description of the pain relief from the medications, documentation of attempts at weaning, a description of how the patient responds to the medication, and alternative treatments under consideration;

            4) provides a description of either sustained improvement in function and pain reduction or consultation with a pain management specialist (if the dosage exceeds 120 mg morphine-equivalent dose or if the duration of treatment exceeds 14 days);

            5) provides an explanation to the patient of the risks and benefits of the prescribed medications and expected duration of treatment.

            The Act will allow an employer, carrier or TPA to disqualify any physician from its network who fails to provide such documentation.  If approved, this Bill would be a major step forward for the New Jersey workers’ compensation system.  New Jersey is a member of the National Prescription Drug Monitoring program, which allows physicians to check on an electronic database for prior or current prescriptions for controlled substances before dispensing narcotic pain medication to a patient. 

The PDMP program along with this proposed bill would go a long way to curb the abuse of opioid medications in workers’ compensation, often among patients who have a history of problems with opioids and other controlled substances.  The bill simply establishes a list of best practices that physicians would need to follow in order to prescribe opioids in the workers’ compensation system, as well as in personal injury protection coverage in automobile insurance. It would not prevent the dispensing of medications to those with chronic or short term pain; it would simply require the physician to undergo careful written analysis before making the decision to prescribe opioid drugs.  Many pain management doctors already engage in these practices and require their patients to sign pain management contracts allowing for urine testing.  However, not all physicians who prescribe opioid medications follow these practices, and this Bill is aimed squarely at those physicians.
Let attorneys: Neil O'Toole and John Sbarbaro help you with your case today!
Contact them at the Law Office of O'Toole & Sbarbaro, P.C.
Phone: 303-595-4777
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, October 3, 2013

Work Comp, Mental Injuries, And Hiring Your Next Comp Claim

By  
Work comp, when it first started, paid only for obvious traumatic injuries. It did not pay for slow starting injuries (repetitive stress), occupational diseases, or physical injuries which, when they healed, left the worker with mental damage (depression, phobia, etc.).

Dissatisfaction With Life Often Leads To A Large Work Comp Claim

Eventually, all those became covered in nearly all states. But what about purely “mental stress” injuries which were not accompanied by physical symptoms? These, perhaps, account for more than half of all comp costs, but they have become masked by a comp system that insists that a treating doctor, at some point, link the claim to physical consequences, either at the start or the end of a claim.

What is the purely “mental stress” that causes so much increase in comp costs? It is nearly always dissatisfaction with a life situation, oftentimes not work related.  A bad relationship often leads to a large claim with a large settlement.

Why do such situations become entrenched in the comp system? Well, there is no affordable way that an investigation can gather enough credible evidence to limit such claims, even though the correlation of bad claims with bad life situations is no secret to claims departments.

Every defense comp attorney has seen, at some point, an employer who tries to develop a defense, but has to drop it when it becomes far too obvious that it will require family members to disclose the darkest secrets and, moreover, to testify against each other. Obviously, an administrative disability system is not the best way to deal with this.

Do Not Hire Next Year’s Work Comp Claim

An employer is also poorly equipped to deal with this, but is far better than a claims unit. The first piece of advice is to recognize potential danger signs, preferably before, not after, the time of hire. The author said, twenty years ago, “Do not hire next year’s claim”. But he surely wasn’t the first to say it. Nor, judging from remarks posted on the web, has he been the last. 

So improved hiring practices are the most effective way to deal with the most troublesome of all claim situations; dealing with dissatisfaction with life by trying to buy it off. It simply does not work.

But what can be done once you have hired next year’s claim, and the year is nearly over? Unfortunately, even the best outcome doesn't come cheap, but if it is not viewed as a learning exercise it will become a “repetitive stress” experience for the employer, since such claims have a way of growing.

Danger Signs Should Be Detected In Interview

A small employer, with only a single office secretary as his work staff, discovered, the hard way, two valuable lessons. However, he learned both far too late to save his business. The first lesson was that a single part time clerk still has to be covered by work comp – and he didn’t have a policy. The other lesson was that a young employee, willing to work for a minimal wage, had too much education to be content with such a wage, unless something was very wrong. The worker, once out on a back claim, continued to remain on it for 18 years, and continues on it.

The real reason for the extended disability had nothing to do with back pain. Instead, there was a real desire to retreat from the world and live at home, never developing outside relationships at all. The danger signs should have been detected at the interview.

Employers must be aware that work comp is the law which is most tilted in favor of the worker. “In favor of” means that claims which probably should not be paid usually are paid. And that includes claims which are due to pre-existing “stress” with no relationship to work.

The lesson is, for employers, that an extra hour during an interview, can replace $100,000 in disability payments. (The case mentioned above has cost the employer $241,000 to date, with no end in sight. In return, the employer received a year of substandard work.)
Original Source

Let attorneys: Neil O'Toole and John Sbarbaro help you with your case today!
Contact them at the Law Office of O'Toole & Sbarbaro, P.C.
Phone: 303-595-4777
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, October 2, 2013

Employer May Have Violated ADA and FMLA Rights of Employee - The Law Office of O'Toole & Sbarbaro, P.C. Workers' Compensation

Nancy Haley worked as a Registered Nurse for Community Mercy Health Partners doing business as Springfield Regional Medical Center (hereinafter SRMC).  She began there in June of 1978.  In November 2009, she was diagnosed with breast cancer and underwent two surgical procedures.  She took approximately five and a half weeks of FMLA leave during this time period and returned to work on January 18, 2010.

SRMC had a progressive discipline policy which involved discipline pursuant to “Corrective Action.”  There were four steps in the Corrective Action process, the first of which was an oral warning.  The second step involved a written warning, the third a “final warning,” and the last led to termination. 

In the summer of 2009, SRMC issued a written warning because Haley missed pages while she was on call.  She did not initially respond to the hospital’s page, was called at home, and arrived at the hospital 37 minutes after the initial page on June 2, 2009.  A similar incident occurred a month later.

SRMC placed Haley on level three discipline in November 9, 2009 for two incidents involving patient “site marking,” which required marking the site of surgery for the surgeon.  On October 9, 2009, Haley took an unmarked patient in the operating room. 

Haley used several FMLA days in 2010 for her serious health condition.  The last FMLA day was April 16, 2010.

On February 12, 2010, Haley’s husband was transported to SRMC with a serious heart condition.  Haley contacted SRMC regarding her inability to work her shift that day and the next two days. SMRC marked her absence on February 12, 2010 as unexcused.

Three days after returning from her April 16, 2010 FMLA leave, SRMC terminated her employment.  Haley’s absence on February 12, 2010, when she was with her husband, was listed as one of the three unexcused absences on the Corrective Action form completed in support of her termination.  Her three unexcused absences along with 11 instances of tardiness were listed as the reasons for placing her at the final termination stage.

Haley sued for violations of her FMLA and ADA rights.  She argued that her cancer condition was covered under the ADA. The court said, “Haley’s cancer was a physiological condition affecting multiple body systems and was treated by a mastectomy, resulting in an anatomical loss.  It unquestionably qualifies as an impairment under the ADA.”

Next, the court considered whether that impairment substantially limited a major life activity with reference to the Americans with Disabilities Act Amendment Acts of 2008. “A major life activity may also include ‘the operation of a major bodily function’ such as ‘’normal cell growth.’”The court added:

A reasonable jury could conclude that Haley was disabled under the ADA, and therefore fulfills the first element of her prima facie claim  She was obviously disabled when the cancer was active, as it substantially limited the major life activity of normal cell growth.  In addition, the cancer substantially limited the major life activity of her work.  Haley took extensive time off for surgery and recuperation between the end of November 2009 and January 18, 2010, during which time she could not work at all.

The Court noted that it does not matter that the cancer was in remission at the time her employment was terminated.  She was still covered under the ADA.

SRMC argued that Haley said in her deposition before trial that she did not consider herself disabled.  The court said that Haley’s own statements “are not particularly probative of the determination of whether she is disabled under the ADA, which is a legal definition quite distinct from the colloquial meaning of ‘disabled.’”  The Court held that Haley made out a prima facie case and therefore denied SRMC’s motion for summary judgment, leaving the matter for the jury to decide.

On the FMLA issue, the court held that a jury “could reasonably conclude that Haley gave sufficient and timely notice that FMLA leave might apply to her absence on February 12, 2010, because SRMC knew of it the day it occurred and it concerned her husband’s serious medical condition.”  The court said that a reasonable jury could conclude that SRMC denied her FMLA leave by categorizing her February 12, 2010 absence as unexcused.

This case is a reminder to employers to fully analyze FMLA and ADA considerations before making termination decisions, even if there is a specific step plan of discipline in place. The case may be found atHaley v. Community Mercy Health Partners, 2013U.S. Dist. LEXIS 11193 (January 28, 2013).

Original Source

Attorneys: Neil O'Toole and John Sbarbaro.
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