Author Archives: Jason


Feds To Ban Truckers From Using (Hand-Held) Cell Phones

posted on by
Federal Motor Carrier Safety Administration

Today’s post comes from guest author from Jon Gelman, LLC – Attorney at Law.

The Federal Motor Carrier Safety Administration (FMCSA) is proposing to restrict the use of hand-held mobile telephones, including hand-held cell phones, by drivers of commercial motor vehicles (CMVs) while operating in interstate commerce. Cell phones have become a major cause of distracted driving accidents resulting in an increase of workers’ compensation claims by employees as well as liability lawsuits against employers directly. This federal rule would be in addition to the many states which already ban hand-held cell phone use.

The following is a summary of the proposed rule:<!–more–> “FMCSA and PHMSA are amending the Federal Motor Carrier Safety Regulations (FMCSRs) and the Hazardous Materials Regulations (HMR) to restrict the use of hand-held mobile telephones by drivers of commercial motor vehicles (CMVs). This rulemaking will improve safety on the Nation’s highways by reducing the prevalence of distracted driving-related crashes, fatalities, and injuries involving drivers of CMVs. The Agencies also amend their regulations to implement new driver disqualification sanctions for drivers of CMVs who fail to comply with this Federal restriction and new driver disqualification sanctions for commercial driver’s license (CDL) holders who have multiple convictions for violating a State or local law or ordinance on motor vehicle traffic control that restricts the use of hand-held mobile telephones. Additionally, motor carriers are prohibited from requiring or allowing drivers of CMVs to use hand-held mobile telephones.”

You can read the full text of the proposed rule here: http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/final/Mobile_phone_NFRM.pdf.

For over 3 decades the Law Offices of Jon L. Gelman in New Jersey have been representing injured workers and their families who have suffered occupational accidents and illnesses. Jon is a prolific author, public speaker and educator on the topic of workers’ compensation law.

10bf4824cef4104f310f26b2806da1bf


Why Are Worker’s Comp Claims Down

posted on by

The number of worker’s compensation claims has dropped dramatically

Today’s post comes from guest author Charlie Domer from The Domer Law Firm.

The Wisconsin Association of Worker’s Compensation Attorneys (WAWCA) just held its tenth annual worker’s compensation seminar in Madison, Wisconsin. (I presented the annual case law update.)  A report on the economic health of Wisconsin worker’s compensation (presented by a colleague on the defense side, Paul Riegel) noted reported worker’s compensation claims have dropped from 55,000 in 2001 to less than 35,000 in 2011.  Based upon the first five months of 2012 reporting, 30,000 reported claims are anticipated to be made in 2012.

Applications for hearing on those claims have also diminished, from 7,000 in 2001 to about 5,500 in 2011.  Again based upon projections, the 2012 number of Applications for Hearing will be about 5,600.

Several potential explanations for this drop were provided including:

  1. The days of asbestosis, silicosis, and similar disease may have ended due to the aging population of those of exposed before the implementation of OSHA in 1970 and the lessening amounts of these substances in the workplace.
  2. Employers argue that workplaces are simply safer, resulting in lesser claims.
  3. The safer workplaces argument is rebutted by employee and Union data that fewer people are willing to make claims in a depressed economy for fear of losing their jobs.  While Wisconsin law assesses a “one year’s wages” penalty against an employer who fires or refuses to rehire an injured worker, in tough economic times, that may not be a risk an injured worker is willing to make.  Anecdotal evidence from a variety of sources indicates viable claims, specifically for “wear and tear” type injuries are simply not being made.
  4. The impact of extending Unemployment Compensation benefits from its initial 26 weeks through multiple extensions may diminish worker’s compensation claims since another “safety net” exists.  Additionally, the availability of Social Security may diminish worker’s compensation claims.  General employment trends also suggest Continue reading »
1d63b90063803ef9c3579bdb3c2fc74e


$97 Million In Fraud: 2012′s Top 10 Workers’ Compensation Fraud Cases

posted on by

Over the past few years, many states have aggressively gone after workers’ compensation fraud (whether it’s the employee or the employer) and the amount of employer fraud being discovered continues to be staggering, notwithstanding these efforts.

Legitimate business owners that pay for workers’ compensation, as required by law, are at a competitive disadvantage with those who cheat the system, and when people suffer a workplace disability and have no insurance local businesses that provide goods and services feel the pain along with health care providers who cannot get properly paid for their services. The cost of medical care and disability ends up being shifted to the taxpayer through Social Security, Medicare and Medicaid, and in states where compliance is not vigorously enforced a culture of cheating continues. The top ten cases for 2012 are listed below.

 

2012 TOP TEN WORKERS’ COMPENSATION FRAUD CASES
Total Fraud: $97,466,500.00

1. ‘Operation Dirty Money,’ Stings Workers’ Comp Fraud Check Cashing Scheme

Florida: July 27, 2012

CFO Jeff Atwater and Broward Sheriff Al Lamberti announced multiple arrests in Operation Dirty Money.

Multiple arrests were announced in Florida’s joint task force’s ‘Operation Dirty Money,’ which led to the arrest of alleged ringleader Hugo Rodriguez, owner of the Oto Group, Inc., and seven other individuals. Mr. Rodriguez was the facilitator of 10 known shell companies that funneled in excess of $70 million in undeclared and undetected payroll through different money service businesses.

By using shell companies, Rodriguez was able to run a large construction operation and avoid paying the cost of workers’ compensation coverage, leaving employees at risk and scamming legitimate businesses.

 

2. Firms Face Charges for Skipping Workers’ Comp Payments

Ohio: May 13, 2012

Thousands of Ohio companies violated state law by not paying their most recent workers’ compensation premium, which can drive up insurance costs for businesses that follow the rules, a Dayton Daily News analysis found.

The bureau identified about 41,247 private employers in the state that failed to report their payroll data and submit premium payments by the deadline. As of May, more than 12,200 accounts remain outstanding, and those companies owe an estimated $5.6 million in premiums.

 

3. Case Proves Employee Leasing too Good to be True

Texas: July 10, 2012

$4,466,500.00 was awarded in a Texas court against a staffing agency and its workers’ compensation insurance company. Jackson Brothers Hot Oil Service hired Business Staffing, Inc., (BSI) in 1999 and required BSI to have workers’ compensation insurance for its leased employees. BSI had 150 client companies with 2,000 employees.

BSI bought a policy from Transglobal Indemnity for a total premium of $4,100.00 to cover all its employees. After failing to pay the medical bills of a 27-year-old oil field worker who was in an explosion and had 18 surgeries, the employee and Jackson Brothers sued BSI and Transglobal for fraud. Neither Transglobal (who had its corporate headquarters in the Turks and Caicos Islands) nor BSI had a license to conduct insurance business in Texas.

4. Business Owner Faces Insurance-fraud Charges

California: May 2, 2012

George Osumi was indicted on numerous felony counts.

Construction business owner George Osumi of Irvine, California was indicted on numerous felony counts of misrepresenting facts to the State Compensation Insurance Fund, among other charges.

From December 2001 to March of 2006, Mr. Osumi committed workers’ compensation premium fraud by reporting his payroll to SCIF at just over $1 million, under-reporting over $3.5 million in payroll. This fraud resulted in a loss of over $814,000.00 in premium owed to the insurance fund.

5. Watertown Roofing Company and its Owners Plead Guilty and are Sentenced for Labor Violations

Massachusetts: January 11, 2012

Newton Contracting Company misclassified half of its workforce as subcontractors.

The Massachusetts Insurance Fraud Bureau discovered that the company, Newton Contracting Company, Inc., owned by Shaun Bryan and Antoinette Capurso-Bryan, misclassified half of its workforce as subcontractors, as well as failing to disclose to auditors more than $3.4 million of their company’s misclassified subcontractor payroll during its annual workers’ compensation audits.

6. 7-Year Sentence in $3.1 Million Fraud Case

California: November 30, 2012

Steven Morales, 65, of Wildomar, CA was convicted and sentenced to seven years in prison for his part in a $3.1 million workers’ compensation scheme. His son Brian was also convicted and sentenced to 4 years in prison. Morales and his son had set up a sophisticated system of shell companies to hide payroll and avoid paying workers’ compensation premiums.

 

7. Construction Company President Accused of Payroll Fraud

Florida: March 29, 2012

Randall Seltzer, president of Navarre Industries, Inc., was charged with multiple felony counts, including workers’ compensation fraud. An investigation by Florida’s Department of Financial Services’ Division of Insurance Fraud revealed that Seltzer systematically and intentionally under-reported his corporation’s true payroll to his insurance carrier. The department’s Division of Workers’ Compensation issued the company two stop-work orders within a five-year period.

Seltzer allegedly established a shell corporation in 2011 to intentionally violate the stop-work orders and continue operating his construction business illegally. If convicted, Seltzer could face up to 30 years in prison and pay over $2.8 million in restitution.

8. CFO Jeff Atwater Announces Arrest of Owner of Fake Company for Creating Fraudulent Insurance Certificates and Avoiding Millions in Premiums

Florida: April 13, 2012

Yucet Batista allegedly used a shell company to commit large-scale fraud.

Yucet Batista was arrested for allegedly creating more than 250 fraudulent certificates of insurance to help uninsured contractors avoid $2.1 million in workers compensation premiums.

Batista created the company and obtained the workers’ compensation insurance policy for the purpose of “renting” it, or making it available to dozens of uninsured subcontractors for a fee.

 

9. Audits Uncover Almost $1.2 million in Workers’ Compensation Violations at Boston Marriott Project

Massachusetts: September 4, 2012

In 12 audits conducted by the Joint Enforcement Task Force on the Underground Economy and Employee Misclassification and the Executive Office of Labor and Workforce Development, it was discovered that there were $584,249.00 in misclassified 1099 wages and $584,287 in unreported W-2 earnings, for a total of $1,171,536.00 in unreported wages by subcontractors on the Marriot renovation project.

Six companies misclassified workers as contractors rather than employees, and seven companies failed to report wages. Among the worst of the offenders were one company that misclassified 28 workers and failed to report over $410,000.00 in wages; another failed to report $462,081 in W-2 wages.

10. Inn Owners Facing Workers’ Compensation and Insurance Fraud Charges

California: June 13, 2012

Owners of the historic Brookdale Inn and Spa are facing trial on charges of falsifying wage information to obtain lower insurance premiums.

The owners of historic Brookdale Inn and Spa, Sanjiv and Neelam Kakkar, are facing trial on charges that they falsified wage information to obtain lower insurance premiums. According to records, the couple paid approximately $800,000 less in insurance premiums than they should have over a period of several years.

26a6327183fee4280fe04b46be85f84b


NC Legislation on Compliance – Something Strange is Happening Here

posted on by

Last Friday (June 22, 2012) the NC Legislature passed an insurance bill (HB 237), allegedly to help the N.C. Industrial Commission track employers to make sure they obey the law and purchase workers’ compensation insurance when they have three or more employees. This bill keeps information confidential that is sent from the Rate Bureau (the private body that tries to set insurance rates for workers’ compensation and other insurance premiums in this state) to the N.C Industrial Commission. It adds the Industrial Commission to an existing statute (NCGS Section 58-36-16) that allows information about an employer’s experience rate modifier and other sensitive information from the Rate Bureau that is already being sent to the Department of Labor.

With as many as 30,000 employers with no insurance (according to a recent article in the News and Observer, and this information was revealed by gaining access to these public records) there is now more reason than ever to maintain the public status of this information. So, why would the legislature want to make this information exempt from public disclosure?

It makes sense that the Industrial Commission keep this information confidential and not allow it to become a “public record.” In North Carolina we have a law (NCGS Section 132-1) that says any document concerning the transaction of business within a government agency should be open to the public, unless otherwise specifically provided by law, since such documents are the “ property of the people.”

The strange part of the bill is another section (NCGS Section 58-36-17) that that says the Rate Bureau shall provide information indicating “the status of workers’ compensation insurance coverage” and that this information shall also be kept confidential and specifically exempted from the public records law. The problem is that another statute already requires employers to provide this information directly to the Industrial Commission under NCGS Section 97-94(a), and that information is currently not exempt from the public records law.

There is nothing sensitive about it. It simply provides proof that the employer has insurance, and that is key information for the public to have. With as many as 30,000 employers with no insurance (according to a recent article in the News and Observer, and this information was revealed by gaining access to these public records) there is now more reason than ever to maintain the public status of this information. So, why would the legislature want to make this information exempt from public disclosure? Something strange is happening here. The legislation is on the Governor’s desk to be signed. It will be interesting to see if she signs it.

3ebd444d9eec21bd7bf4806b5a56451d


Ever Checked Out A Law Firm’s Mission Statement?

posted on by

Consitution of the United StatesOur country has a mission statement. It’s called the U.S Constitution, and it’s a written document that lays out the fundamental principles and values of the country. When we stray from that document we are going off course, much like a ship that begins to leave its charted waters, and each organization should have its own constitution to keep it in line. In fact, most do. They call them mission statements.

My firm’s mission statement reads as follows:

This law firm is dedicated to helping clients achieve a just and fair resolution of their legal problem, by holding ourselves to the highest ethical and professional standards. We will be diligent and reliable, and we will be courteous to our clients and all others with whom we come in contact. We will be honest, compassionate and tolerant. Integrity will be our guiding star. We will work as a team for the benefit of our clients and will exhibit consideration and respect for the well being of all persons. We are also committed to making contributions to our society and profession, and through continuing legal education and study we will maintain our knowledge of the law.

At the same time we are also dedicated to providing a stable economic and pleasant environment for all employees. We will keep ourselves mentally and physically healthy, maintain a sense of humor, and develop our unique gifts and creative talents.

We strive to conduct ourselves according to that document, and when we review cases and the activity we take in those cases, we bring ourselves back to the basic question: “Are we living and practicing law within the guidelines of that mission statement?” If not, we need to change course and comply. It sets boundaries. It sets goals. It provides meaning and purpose. All law firms should have these mission statements so they know what the purpose of the law firm is, and so the public knows as well. So, the next time you review a law firm’s website, look for the mission statement and see what it says. Hopefully, you will agree with the mission. If not, move on.

5e130bbe175f77b440d8bba4bfb7c47b


Real Deaths in N.C. – Real Families – Not Just Statistics

posted on by

According to the North Carolina Department of Labor, for the past two years there have been 101 deaths on the job in this state. Instead of just reviewing that cold statistical number, it might be a good idea for all of us to see the names of some of these individuals and how they died. Here is a link to a list, incomplete, but nevertheless a list to put names with numbers: A Few Of North Carolina’s Workers Recently Killed On The Job.

Do you ever wonder what the funeral was like for these folks? Ever wonder how many children were left without a father, or think about the crying and anguish that followed notification of death? As you see names like Sanchez, Ramirez, Reyes, Martinez, Gomez, Benitez, Chavez, and other similar names, do you wonder why so many Hispanics seem to be on the list? When you see that at least 21 of the deaths were caused by falls, do you wonder why so many died from that cause? Do you wonder who is in charge of safety at these job sites? Do you wonder how many of these deaths were preventable? Finally, do you wonder if there is anything you can do (yes, you, not the employer) to stop this carnage? If you have some ideas, let me know.

ba21ead2f6c1b09bbbe99321d7f7e6a7


Cell Tower Deaths: More To Come

posted on by

On May 22, 2012 the PBS Frontline series ran a devastating story about cell tower deaths in this exploding industry and at the end of the story, after it had revealed how little concern is being shown for the safety of men who climb these towers, one man was quoted as saying “people will die.”

It was reported that the accident rate on cell towers is ten times the rate of accidents in the construction industry. So, we know people will die and it’s as predictable as snow in Colorado in the winter, yet it looks like nothing will be done.

One well known builder said his company might do 4 towers in a year, but now they were being asked to do 40, and there was no way to properly train new men to do that work safely.

The Frontline story outlined the tremendous growth of cell towers, particularly between 2006-2008 as the demand grew for internet connections all over the country. Carriers like AT&T wanted to get rid of dead zones and in order to do that they needed more towers and they needed them built quickly to out pace the competition. One well known builder said his company might do 4 towers in a year, but now they were being asked to do 40, and there was no way to properly train new men to do that work safely. As a result, safety took a back seat to getting the job done.

A 21 year old man who had dropped out of school to find a job was paid $10 an hour full time to construct towers and he eventually fell 200 feet to his death, primarily because he was not wearing a safety harness that would have prevented his fall. He had been ‘free-climbing” (no harness) to move more quickly,and many others did the same thing. OSHA requires that the employer enforce safety.

A 21 year old man who had dropped out of school to find a job was paid $10 an hour full time to construct towers and he eventualy fell 200 feet to his death.

The boss can’t just leave it up to the employee and when a death occurs blame the employee for not following safety rules, but that is what always happens. Eleven deaths occured in one year on AT&T jobs and they stopped work (finally) to discuss the problem. Last year there were no deaths on AT&T towers. It’s amazing what can happen when companies make safety a priority.

It’s amazing what can happen when companies make safety a priority.

Unfortunately, the demand is still high and as these towers continue to be built you will hear about falls,serious injuries and deaths, all at a tragic cost to families who are affected. As Americans, are we going to enforce safety or are we going to be like some other countries who just don’t seem to care? If we don’t care about safety enforcement for cell towers how long will it be before some other lack of safety compliance affects us – like airline pilot safety, bridge construction safety, or car safety – and a son,daughter, father or other person we care about is injured? We will ask ourselves why we

didn’t do more to stop this madnness. We know “people will die” yet we do nothing? We have to stop hoping that safety will be enforced. We have to demand it.

6dbb655fe61873e59c73c22035992dee


Employers Must Obtain And Maintain Workers’ Compensation Insurance Coverage

posted on by

Today we have a guest post from our colleague Todd Bennett of Nebraska.

Your employer is required by law to have workers' compensation insurance for you.

Every employer not in agriculture, farm or ranch operations is required to obtain and maintain workers’ compensation coverage for all employees. Those employers who voluntarily and willfully fail to obtain and maintain coverage violate the law and subject themselves to significant risks.

If you are an employee who is injured in the course of your employment and you learn that your employer has not maintained workers’ compensation coverage for you, you can either file a claim against the employer in civil court or file a claim in the Workers’ Compensation Court.

Employers who try to avoid their legal obligations and avoid providing workers’ compensation coverage expose themselves to monetary judgments in civil court, stop-work orders from the Attorney General’s office, injunctions from continuing to operate their business, assessments against their property, daily penalties of Continue reading »

7f807962376aaf10d78065998084406e


Nannies, baby-sitters, and comp coverage: Yes, we still have “domestic servants”

posted on by

Today we have a guest blog from our colleagues Nathan Hammons and Charlie
Domer of Wisconsin. While this post contains many references to Wisconsin law, we think it is a valuable examination of the topic of domestic servants as employees who are protected by workers’ compensation.

Most families in Wisconsin have hired a baby-sitter or nanny to watch their children. The pay generally is in cash for a defined period of time. Does the situation create an employer-employee relationship, entitling an injured baby-sitter to worker’s compensation benefits?

Under the Worker’s Compensation Act, most employers in the state are required to provide worker’s compensation coverage for their employees. Employers of ‘domestic servants’, however, are completely exempt from the requirement. (Wis. Stat. §102.07(4)(a)1.) Unfortunately, neither the Act or Wisconsin courts provide a definition. So, what exactly is a domestic servant?

Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

The name ‘domestic servant’ is antiquated. It brings up old images of butlers, maids, and other people toiling away in the mansions of royalty and the wealthy. Indeed, search Wikipedia for ‘domestic servant’ and you’ll be directed to ‘domestic worker’, the modern term and one that doesn’t imply inequality in the workplace. Without citation or authority, a Department publication indicated that it has “consistently ruled that persons hired in a private home to perform general household services such as nanny, baby-sitting, cooking, cleaning, laundering, gardening, yard and maintenance work and other duties commonly associated with the meaning of domestic servant, meet the definition of domestic servant intended by the Act.” Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

Consequently, nannies Continue reading »

d13b5e9b4f17d7bc8a81474b3afeee36