What Every Employee Should Know: Preparing For The Defense Independent Medical Examination (IME)

Today's post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm.

After your work injury your employer has a right to make you go to what is called an “Independent Medical Examination” or “IME.” The IME is, basically, an examination by a doctor chosen by your employer who will take your statement of what happened and perform a physical examination.

How you conduct yourself during the IME can help or hurt your case. I strongly recommend that all injured workers follow the recommendations below in preparing for an IME. Before going to the IME, spend an hour or two writing down the history of your injury, including:

• your current complaints based on the injury,
• what things cause your injury to be aggravated,
• and what care and treatment you have been given for your injury.

You will have only a limited amount of time to describe these things to the IME doctor. Therefore, you should take your written statement to the IME and hand a copy of it to the doctor. It is important that you have a well-organized statement. Then make sure what you say to the IME doctor is in keeping with your written statement. Save the written statement and give a copy of it to your attorney.

He or she will be able to use the statement if the things you say in it do not end up in the IME doctor’s record. You will probably be asked to describe your pain. Since pain is subjective, it is often difficult to describe. You might find it easiest to describe activities that worsen your pain. You should have a list of everyday activities that increase your pain.

Be as truthful, accurate, and complete as possible. Even if your care before the IME is poor, I recommend against complaining bitterly about that care. Instead focus on just describing the facts. If true, tell the IME doctor how the care so far has not worked and yet the company doctor continues giving you that same useless care; or how the company doctor spends more time communicating with the company representative than with you.

Recall and apply that old admonition from “Dragnet”---“just the facts, sir, just the facts.” After the IME, your attorney will be interested in knowing exactly what went on in the examination. Thus, after the IME, take at least one-half hour to write down as much as you can remember of the following:

• what the doctor said,
• what you answered,
• what the doctor did,
• and what if anything was dictated into a recorder,
• the time that you arrived at the office (be as accurate as possible),
• the time that you were placed in the examining room,
• when the doctor entered the room,
• and when the doctor left the room.

It may be important to have an exact record of the time the doctor spent with you in the examination room. You need to spend some time to prepare for the IME.

By following the guidelines set forth above, you will provide a truthful, accurate, and complete statement of your condition. Hopefully, the IME doctor will then provide your and your employer's attorneys with similar findings, diagnosis, and recommendations for treatment.

Of course, you should spend some time talking to your attorney before any IME. Good luck!
...

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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The Oklahoma Opt-Out System is Bad Medicine for an Ill System

The newly enacted Oklahoma "Opt-Out" workers' compensation system has been urged by reformers as an effort to provide a more efficient and effective than its century old program enacted in the early 1900s. A comparison of the Oklahoma Opt-Out system to the New Jersey system reflects a limitation on litigation and a return to a more administrative program. Additionally, the opt-out system would provide for injured workers' choice of physician that ultimately could be blended into an employer based health program.

The changes are dramatic, and a major shift from the traditional based system such as New Jersey has followed since 1911.

Obviously the future statics will be reviewed by all stakeholders to determine if the Opt-Out System can really satisfy the concerns of all stakeholders or just a few.

Radical statutory changes to workers' compensation that have been limited to the interests of specific interest groups in the past have been met with disasters. The Opt-Out System of Oklahoma appears to be one of those programs, and has been bitterly contested by the advocates of injured workers.

In order for the creation of an optimal system of compensation to meet the socio-political-economic changes that are occurring in the world, all parties must sit at the table and work out a plan together. The Oklahoma Opt-Out system just appears to be bad medicine for a very ill system.

New Jersey Traditional v Oklahoma Opt-Out

Hearing Officials
The Jersey System:
Case are heard by Compensation Judges nominated by the Governor and the system is administered under the Executive Branch of government. There are 50 Compensation Judges.

The Oklahoma Opt-Out System:
Starting on February 1, an administrative process with three appointed commissioners will replace the current court procedure with 10 judges for litigating workers’ compensation claims.

Temporary Disability Benefits
The Jersey System:
If an injured worker is disabled for a period of more than seven days, he or she will be eligible to receive temporary total benefits at a rate of 70% their average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage (SAWW) or fall below the minimum rate of 20% of the SAWW. These benefits are provided during the period when a worker is unable to work and is under active medical care.The limit is 450 weeks. The maximum temporary disability rate for 2013 is $826.00.

The Oklahoma Opt-Out System:
Temporary disability payments will be reduced to 104 weeks instead of 156 weeks, with a cap at 70 percent of the state’s average weekly wage, about $540 per week.

Permanent Disability Benefits:
The Jersey System:
Partial Disability: When a job related injury or illness results in a partial permanent disability, benefits are based upon a percentage of certain "scheduled" or "non-scheduled" losses. A "scheduled" loss is one involving arms, hands, fingers, legs, feet, toes, eyes, ears or teeth. A "non-scheduled" loss is one involving any area or system of the body not specifically identified in the schedule, such as the back, the heart, the lungs. These benefits are paid weekly and are due after the date temporary disability ends.

Total Permanent Disability:
These weekly benefits are provided initially for a period of 450 weeks. These benefits continue beyond the initial 450 weeks provided that the injured worker is able to show that he or she remains unable to earn wages.

Wages earned after 450 weeks offset the weekly computation in proportion to the income at the time of the injury. Permanent Total benefits are paid weekly and are based upon 70% of the average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage (SAWW) or fall below the minimum rate of 20% of the SAWW.

Permanent Total Disability is also presumed when the worker has lost two major members or a combination of members of the body such as eyes, arms, hands, legs or feet. However, permanent total disability can also result from a combination of injuries that render the worker unemployable.

The Oklahoma Opt-Out System:

Permanent disability payments will be reduced from 520 weeks to 350 weeks.

Choice of Treating Physician
The Jersey System:

None. Employer selected physician must be utilized.

The Oklahoma Opt-Out System:

Employees will be allowed to change treating physicians once so long as the selection is from a list of three doctors provided by the employer.

Arbitration or Alternate Dispute Resolution

The Jersey System: 

None. All cases, including settlements, must be heard or reviewed by a Compensation Judge.

The Oklahoma Opt-Out System:

Employers can require arbitration as the exclusive way to settle claims and disputes with employees.

EPA Fines Prudent Technologies $65,450 for Failure to Adhere to Repair and Painting Rule at Omaha Lead Site

Prudent Technologies, of Kansas City, Mo., has agreed to pay a $65,450 civil penalty to resolve violations of the Renovation, Repair and Painting (RRP) rule at two properties within the Omaha Lead Superfund Site.

Prudent Technologies, working under a contract with EPA’s Superfund program, was performing renovation activities designed to stabilize paint at each location. Paint stabilization includes scraping and painting the exteriors of houses to protect EPA’s remedy at the site, which consists of removing lead-contaminated soil from contaminated properties.

At the first location, Prudent failed to follow lead-safe work practices as required by the RRP rule. The violations included failure to post signs clearly defining the work area and warning occupants and other persons not involved in renovation activities to remain outside of the work area; failure to close all doors and windows within 20 feet of the renovation before commencing work; failure to cover the ground with plastic sheeting or other disposable impermeable material extending 10 feet beyond the perimeter of surfaces undergoing renovation before the renovation; and failure to clean the work area upon completion of the work.

Violations at the second location included failure to follow lead-safe work practices as required by the RRP rule; failure to post signs clearly defining the work area and warning occupants and other persons not involved in renovation activities to remain outside of the work area; and failure to cover the ground with plastic sheeting or other disposable impermeable material extending 10 feet beyond the perimeter of surfaces undergoing renovation.

Since 1999, EPA has been working cooperatively with contractors, local officials, agencies, institutions, community organizations, residents and property owners to sample and remediate lead-contaminated soils from Omaha’s residential yards, schools, day care facilities, parks and playgrounds. Addressed under EPA’s Superfund program, the Omaha Lead Site, consisting of approximately 27 square miles of eastern Omaha, has been on the National Priorities List since 2003.

The RRP rule is a part of the Toxic Substances Control Act (TSCA). The rule requires each person or firm hired to perform a renovation to be certified and to use specific work practices to minimize lead-based paint hazards for workers and occupants. Under the RRP rule, general contractors can be held liable for regulated renovation work that subcontractors perform for the company. This includes record-keeping requirements (e.g., handing out the Renovate Right pamphlet, keeping Lead-Safe Work Practices checklists, etc.) and work practices requirements (e.g., training workers, putting up appropriate signs, using disposable impermeable material to contain dust and debris, etc.).

Corporate Liability: Halliburton Pleads to Destroying Evidence in Gulf Pil Spill 2010

The US Department of Justice has announced that Halliburton Corporate Services has pleaded guilty to destroying evidence arising out of the 2010 Deepwater Horizon oil spill that occurred in the US Gulf of Mexico.

"Halliburton Energy Services Inc. has agreed to plead guilty to destroying evidence in connection with the Deepwater Horizon disaster, the Department of Justice announced today. A criminal information charging Halliburton with one count of destruction of evidence was filed today in U.S. District Court in the Eastern District of Louisiana.

"Halliburton has signed a cooperation and guilty plea agreement with the government in which Halliburton has agreed to plead guilty and admit its criminal conduct. As part of the plea agreement, Halliburton has further agreed, subject to the court’s approval, to pay the maximum-available statutory fine, to be subject to three years of probation and to continue its cooperation in the government’s ongoing criminal investigation. Separately, Halliburton made a voluntary contribution of $55 million to the National Fish and Wildlife Foundation that was not conditioned on the court’s acceptance of its plea agreement.

Jersey City, NJ, theatrical equipment company cited by OSHA for exposing workers to workplace safety and health hazards

The U.S. Department of Labor's Occupational Safety and Health Administration has cited Acadia Scenic Inc., which builds scenery for the entertainment industry, with 22 safety and health violations, including two willful. The citations followed an April inspection, prompted by the agency's Health-High-Hazard Top 50 Local Emphasis Program and its Amputations and Combustible Dust Emphasis Program. Proposed penalties total $49,600.

The willful violations, with $28,000 in penalties, were cited for a lack of guarding on hand-fed circular ripsaws and crosscut table saws. A willful violation is one committed with intentional, knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health.

The 19 serious violations, with $21,200 in penalties, include the company's failure to keep the workplace clean and orderly; prevent accumulations of explosive dust; provide railings on stairs; establish or implement a written respiratory protection program for workers required to wear respirators; have fire extinguishers mounted and readily accessible for use; and provide an educational program on the general principles of fire extinguisher use and hazards involved for workers expected to fight incipient stage fires.

The company was also cited for failing to provide machine guarding for a miter saw; provide spreaders and nonkickback devices on two hand-fed circular ripsaws; properly adjust a work rest on grinding machinery; determine each employee's exposure to methylene chloride; provide appropriate gloves and eyewash facilities for workers using methylene chloride-containing adhesives; and develop and implement a written hazard communication program that includes training for workers exposed to hazardous chemicals. A serious violation occurs when there is a substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

"Each of these hazards threaten the company's ability to provide employees with a safe and healthful work environment, and should be corrected immediately," said Kris Hoffman, director of OSHA's Parsippany Office. "OSHA will continue to hold employers responsible when they fail to protect their workers."

Inspectors also cited the company for one other-than-serious violation, which carries a $400 penalty, for not recording a workplace injury on the employer's OSHA Form 300 Log of Work-Related Injuries and Illnesses. 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.

Acadia Scenic Inc. has 15 business days from receipt of the citations to comply, ask for an informal conference with OSHA's area director in Parsippany or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

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The 10 Highest Medical Cost Jurisdictions for Medicare

A recent study highlights the nation's disparity on the cost of medicine. The study also recommends that Medicare continue to pay varying medical fees by jurisdiction. In many states, workers' compensation medical fees are based upon Medicare guidelines.

"For over three decades, researchers have documented large, systematic variation in Medicare fee-for-service spending and service use across geographic regions, seemingly unrelated to health outcomes. This variation has been interpreted by many to imply that high spending areas are overusing or misusing medical care. Policymakers, seeking strategies to reduce Medicare costs, naturally wonder if cutting payment rates to high cost areas would save money without adversely affecting Medicare beneficiary health care quality and outcomes.

Raising the Minimum Wage Is Good for the Economy

Most workers' compensation rates are calculated on the SAWW (State Average Weekly Wage.) Raising minimum wages will increase workers' compensation rates for temporary and permanent disability benefits. Today's post was shared by US Dept. of Labor and comes from www.whitehouse.gov

Minimum wages nationwide. (Photo credit: Wikipedia)

Today, low-wage workers and their advocates are gathering together as part of a national day of action for an increase in the minimum wage. Marking four years since the last increase, Americans across the country are making the case for why raising the minimum wage is good for workers and the economy.

Raising the minimum wage was also part of the economic
 vision that President Obama laid out in Galesburg, Illinois today, as he described what we need to do to support the middle class and those who are trying to join it. In his own words, “because no one who works full-time in America should have to live in poverty, I will keep making the case that we need to raise a minimum wage that in real terms is lower than it was when Ronald Reagan took office. “