Workers Comp Matters Legal Talk Network

This episode opens a new topic for the Workers Comp Matters podcast: repetitive stress injuries, sometimes referred to cumulative trauma, acquired on the job. What happens to someone when someone develops a workplace injury, physical or mental, that can’t be traced back to a single, isolated event? Or what if the injury is the result of cumulative trauma developed under multiple employers? 
Bodily wear and tear, the result of daily repetitive labor, is real. Think of the brick mason on his knees for decades or the mechanic crawling under vehicles and lifting heavy items, or the carpal tunnel injuries from working at a keyboard week in and week out. These injuries pose challenges when asked for a “date of injury” on a claim form. 
For attorneys representing victims of repetitive stress, clarity is key, explaining clearly to the investigator that there is no single date. The injuries were the result of the entire period of labor. Lawyers need to think creatively to fully communicate that the injury is the direct result of the workplace. 
We all “break down” as we age. For a successful claim, attorneys must show that the traumatic “wear and tear” injury is a direct result of the workplace, not simply the result of ordinary aging.
Mentioned in this Episode:
Massachusetts Zerofski Case

The “times they are a changing” in the world of Workers’ Compensation, a system developed when the relationship between workers and employers were more clearly defined. Guest Emily Spieler is an accomplished author, former professor, practicing attorney, and government official with a career that spans the space of workers’ rights, safety, and compensation. 
The 100+ year old system of Workers’ Comp has evolved and continues to change and adapt. But the bottom line is we still have a duty to care for injured workers. How do we fit today’s challenges into an old model? 
There’s a growing debate today in both legal and government circles over the definition of worker/employer relationships. The world today is more complex than when compensation rules were developed, and the nature of work has moved beyond old factory and mining jobs.
Contract workers, gig employees, and working remotely are shaking up the working world. Who should cover an Uber driver? As unions fade, who helps injured workers understand their rights, file claims, and protects them from retaliation for asking for compensation? Robotics, AI, rush warehouse fulfillment, and even jobs that haven’t been invented strain the limits of our current system. This is a fascinating conversation. 
Mentioned in this Episode:
“(Re)Assessing The Grand Bargain: Compensation For Work Injuries In The United States, 1900-2017,” Emily A. Spieler, Rutgers University Law Review
“US Court Rules Uber And Lyft Workers Are Contractors,” BBC
“Oklahoma Workers’ Comp Opt Out Ruled Unconstitutional,” Insurance Journal

A person getting hurt at the workplace is never funny. But it can be instructional to examine some of the strangest ways people manage to become injured at work. Hear about some “interesting” cases. 
A schoolteacher whose leg “fell asleep” while he sat in a classroom falls trying to stand up. He broke his femur. Is he entitled to compensation from his employer? 
An Amtrak baggage handler was visiting the restroom when someone tossed a firecracker into the room. Startled, he fell and was injured; is Amtrak responsible? How about a city worker who says he picked up a firecracker he found on the job, and it mysteriously exploded, injuring him? 
People get hurt at work, but as these and other cases illustrate, it’s not always the responsibility of the employer. (And sometimes, workers do silly things…).
Mentioned in this Episode:
Tom Robinson’s Top 10 Bizarre Workers’ Comp Cases For 2022
Steven Silberberg v. Palm Beach County Schools
Phillip Durance v. National Railroad Passenger Corp aka Amtrak
Dylan Junior v. Illinois Workers’ Compensation Commission
Jonathan Hollis v. Acoustics, Inc. and Associated General Contractors of MS, Inc.
Donald Weed v. Spraying Systems, Co
Stanis v. Workers' Comp. Appeal Bd. (Brand Energy Servs.)
 

HIPAA, the Health Insurance Portability and Accountability Act, is 27 years old. For better or worse, it was designed to protect patients. But in reality, it has also hampered attorneys in their quest for medical records critical to ensuring fair compensation for injured workers.
Guest Jared Vishney is the founder and CEO of the medical record retrieval technology company Arctrieval. He says most firms wait more than three months for medical records, some as much as four months or more. HIPAA regulations (and penalties) have turned medical record holders so risk averse that it’s hard for patients to get their own records. 
The rules around HIPAA and medical records are murky. How much time do institutions have to turn over requested records? How can attorneys and clients push providers to turn over records faster? Workers’ Comp attorneys may find themselves caught in a disconnect between medical record technology and a web of legislation that is supposed to oversee electronic health record systems and rates for copies of those records. It’s hard for clients and attorneys to know they’re getting the full picture, and costs can run into the thousands of dollars. 
Hear about tips and tricks for getting the records you need. If you’ve been frustrated by a tangled medical records system, this episode of Workers’ Comp Matters is for you.
Mentioned in this Episode:
“Health Insurance and Portability and Accountability Act,” Centers for Disease Control and Prevention
“Section 164.524 - Access of individuals to protected health information,” Legal Information Institute, Cornell University
“Medical Records: Fees and Challenges Associated With Patient Access,” GAO report to Congress

Did we ever learn a lot during the once-in-a-generation health event that was COVID! Guest Dr. Bogdan Savych of the Workers Comp Research Institute (WCRI) is a policy analyst who is studying the lasting effects of the illness, as well as lingering cases of Long Covid. 
What is “Long COVID?” How big is the problem? Is it even real? Is a pandemic an occupational disease? Savych is investigating who should pay and who decides how much a claim is worth. Imagine months, maybe years, of shortness of breath, brain fog, anxiety, and chest pain. The question is whether the workplace is responsible. 
For Workers’ Comp attorneys representing clients, this becomes an issue of connecting the workplace to the initial infection, then to “Long COVID,” and finally to the worker’s ability or inability to return to work. 
If you’re confused, this is the place to start. Four years after the onset of COVID, we’re still learning new things and still committed to helping workers recover and get back to their jobs. 
Mentioned in this Episode:
Workers Compensation Research Institute, WCRI
“Long COVID in the Workers’ Compensation System in 2020 and 2021,” by Dr. Bogdan Savych
Dr. Bogdan Savych's previous appearance on Legal Talk Network
Centers For Disease Control And Prevention, CDC, “Long COVID Or Post-COVID Conditions”
National Institute for Occupational Safety and Health, NIOSH  

Our understanding of work and workplaces may have been forever changed by the COVID pandemic. Many workers today are working from their own homes or conducting meetings by phone during their occasional trip to an office.
When you’re working from home and slip and injure yourself in your own bathroom during the workday, who is responsible? If you are hit by a careless driver while conducting a business meeting by phone in your car, who pays?  
Guest Cathy Surbeck of Surbeck Law is the incoming president for the Workers Injury Law & Advocacy Group (WILG). She shares how WILG members are grappling with a legal system that is struggling to keep up with the evolution of the workplace. 
And while financial support is crucial in any workplace injury, so is medical care, rehabilitation, and recovery. After COVID, many care providers have shifted to a hybrid office and telehealth model. It remains to be seen whether this model can help an injured worker fully recover and return to work. 
This is a challenging time for the Workers’ Comp field. Everything is changing, from where we work to how we receive care, and even how resolution hearings are held. Don’t be left behind.