Blog – Black Law, PC

EPA Silent on Benzene Levels After Hurricane Harvey

Wed, 08 Nov 2017 22:41:00 GMT

The EPA is remaining silent about the benzene levels in neighborhoods around the Houston Ship Channel immediately after Hurricane Harvey. According to an article published by The Texas Tribune , the EPA monitored for benzene and other toxic pollutants the week after Harvey crippled the Houston area. The EPA has yet to release its monitoring data, but did say that the levels met Texas guidelines. Monitoring of the same area by private environmental groups paint a much different picture. It is widely accepted that the only safe level of benzene exposure is “zero”.

Black Law, PC May Be Able to Help

Black Law, PC helps people who have developed acute myeloid leukemia (AML), chronic lymphocytic leukemia (CLL), Non-Hodgkin’s Lymphoma (NHL), Aplastic Anemia (AA), and Myelodysplastic Syndrome (MDS) from benzene exposure.

If you or someone you know has been exposed to benzene and developed:

Please contact Black Law, PC today for a free consultation .

The post EPA Silent on Benzene Levels After Hurricane Harvey appeared first on Black Law, PC .

Roundup Lawsuit – Non-Hodgkin’s Lymphoma

Thu, 02 Mar 2017 22:32:00 GMT

Black Law, PC is investigating cases against Monsanto for workers who have developed cancer from Roundup exposure.

Roundup, manufactured by Monsanto, is a chemical herbicide containing glyphosate. It is used to kill weeds that damage crops. Recent scientific studies have linked Roundup exposure to non-Hodgkin’s Lymphoma, leukemia and multiple myeloma.

Studies indicate workers with an increased risk of developing cancer from Roundup exposure include:

If you or someone you know has been exposed to Roundup and developed non-Hodgkin’s lymphoma, leukemia, or multiple myeloma, contact Black Law, PC today for a free consultation .

The post Roundup Lawsuit – Non-Hodgkin’s Lymphoma appeared first on Black Law, PC .

Black Law, PC Wins Jury Verdict

Fri, 09 Dec 2016 17:05:00 GMT

Black Law, PC congratulates firm associate, Jonathan Sneed , for winning a jury verdict in his first jury trial. After a two day trial in the 295th District Court of Harris County, Texas, the jury found for our clients, Eausaw and Brenda Stephenson, and awarded compensatory damages totaling over $18,000 dollars. The jury award included:

The defendant refused to offer any money prior to trial.

The case stems from a car wreck that occurred on November 29, 2014. The defendant refused to accept responsibility for the crash and instead blamed Mr. and Mrs. Stephenson for causing the collision. After deliberating for two hours, the jury returned its verdict finding the defendant to be 100% at fault.

We are all thrilled with the result and are pleased to see justice prevail. We appreciate the thoughtfulness, seriousness, and commitment to fairness shown by the wonderful citizens of Harris County, Texas who served on the jury.

Black Law, PC handles Auto and Truck Accident cases. Contact Black Law, PC for a free consultation.

The post Black Law, PC Wins Jury Verdict appeared first on Black Law, PC .

Are you really covered by Workers Comp?

Thu, 15 Oct 2015 18:38:00 GMT

Inside a Texas Lawyer’s Campaign to Ditch Workers’ Comp
by Michael Grabell, Pro Publica, and Howard Berkes, NPR, The Texas Tribune
October 14, 2015

Standing before a giant map in his Dallas office, Bill Minick doesn’t seem like anyone’s idea of a bomb thrower. But backed by some of the biggest names in corporate America, this mild-mannered son of an evangelist is plotting a revolution in how companies take care of injured workers.

His idea: Let them opt out of state workers’ compensation laws — and write their own rules.

Minick swept his hand past pushpins marking the headquarters of Walmart, McDonald’s and dozens of his other well-known clients, and hailed his plan as not only cheaper for employers, but better for workers too.

“We’re talking about reengineering one of the pillars of social justice that has not seen significant innovation in 100 years,” Minick said.

Minick’s quest sounds implausible, but he’s already scored significant victories.

Many of the nation’s biggest retail, trucking, health care and food companies have already opted out in Texas, where Minick pioneered the concept as a young lawyer. Oklahoma recently passed a law co-written by Minick allowing companies to opt out there. Tennessee and South Carolina are seriously considering similar measures. And with a coalitionled by executives from Walmart, Nordstrom and Lowe’s, Minick has launched a campaign to get laws passed in as many as a dozen states within the next decade.

But as Minick’s opt-out movement marches across the country, there has been little scrutiny of what it means for workers.

ProPublica and NPR obtained the injury benefit plans of nearly 120 companies who have opted out in Texas or Oklahoma — many of them written by Minick’s firm — to conduct the first independent analysis of how these plans compare to state workers’ comp.

The investigation found the plans almost universally have lower benefits, more restrictions and virtually no independent oversight.

Already in Texas, plans written by Minick’s firm allow for a hodgepodge of provisions that are far different from workers’ comp. They’re why McDonald’s doesn’t cover carpal tunnel syndrome and why Brookdale Senior Living, the nation’s largest chain of assisted living facilities, doesn’t cover most bacterial infections. Why Taco Bell can accompany injured workers to doctors’ appointments and Sears can deny benefits if workers don’t report injuries by the end of their shifts.

And it’s Minick’s handiwork that allows Costco to pay only $15,000 to workers who lose a finger while its rival Walmart pays $25,000.

Unlike traditional workers’ comp, which guarantees lifetime medical care, the Texas plans cut off treatment after about two years. They don’t pay compensation for most permanent disabilities and strictly limit payouts for deaths and catastrophic injuries.

The list of what the plans don’t cover runs for pages. They typically won’t pay for wheelchair vans, exposure to asbestos, silica dust or mold, assaults unless the employee is defending “an employer’s business or property,” chiropractors or any more than 75 home health care visits. Costco won’t cover external hearing aids costing more than $600. The cheapest external hearing aid Costco sells? $900.

The plans in both Texas and Oklahoma give employers almost complete control over the medical and legal process after workers get injured. Employers pick the doctors and can have workers examined — and reexamined — as often as they want. And they can settle claims at any time. Workers must accept whatever is offered or lose all benefits. If they wish to appeal, they can — to a committee set up by their employers.

In many cases, ProPublica and NPR found, the medical director charged with picking doctors and ultimately reviewing whether injuries are work-related is Minick’s wife, Dr. Melissa Tonn, an occupational medicine specialist who often serves as an expert for employers and insurance companies.

Workers’ comp was founded on the premise that employers owed a duty to injured workers and their families. And laws in every state require them to pay workers’ medical bills and some of their lost wages until they recover — or for life if they can’t.

Earlier this year, a ProPublica and NPR investigation detailed how states have chipped away at these guarantees. A series of new laws has cut benefits, given employers and insurers more control over medical care, and made it more difficult for workers to qualify for coverage. But other than Texas and Oklahoma, no state has allowed companies to simply opt out.

Minick, 55, markets his vision as a cure for the endless cycle of cuts.

“It’s not about reducing benefits,” he said. “We can objectively show you that we have saved our clients over a billion dollars against Texas workers’ comp over the past decade. When you’re saving that kind of money, you don’t have to get hung up on squeezing the employee.”

Yet Minick’s push has united an unlikely set of allies — unions, trial lawyers and insurance companies. They say his idea isn’t progress, but a return to the Industrial Age before workers’ comp, when workers and their families had to sue their employers or bear the costs of on-the-job injuries themselves.

“That’s the system we had in place 100 years ago,” said Trey Gillespie, senior workers’ comp director for the Property Casualty Insurers Association of America. “This is not an innovative concept.”

Mike Pinckard, a Fort Worth truck driver for 31 years, remembered when his employer, Martin-Brower, McDonald’s largest distributor, announced last November that it would be switching to an opt-out plan.

“They told us this was going to be the best thing, that this was going to be better than workers’ comp,” he said.

Two months later, Pinckard said, he was pulling a cart loaded with frozen French fries when he slipped on some ice in his trailer and suffered a hernia. He had previously had two hernias on the job that were covered by workers’ comp and figured this time would be no different.

But the denial letter said the plan for Reyes Holdings, which owns Martin-Brower, only covers two types of hernias — not the kind Pinckard suffered.

“The only way it was covered was if it was directly under my belly button,” he said. “Mine was slightly above my belly button.”

In this instance, as in others ProPublica and NPR found, the costs of the injury were shifted to the employee, group health or government programs.

Pinckard, 58, said he’s spent over $10,000 in deductibles and copays after getting the hernia covered by his health plan.

“I gave my body and soul to the company, and they were doing the same back until last year,” he said. “It’s just an easy way for the company to get out of when you get hurt. It’s all it is.”

The Texas Way
Texas has always allowed employers to opt out of workers’ comp. But until insurance premiums started rising rapidly in the late 1980s, most companies considered it foolish because carrying workers’ comp protected them from lawsuits.

Minick was a young lawyer for one of Dallas’ oldest firms in 1989, when some of the firm’s business clients, gambling that the cost of any lawsuits would be cheaper, began dropping workers’ comp. The senior partners assigned Minick and several colleagues to come up with an alternative.

They found it in the Employee Retirement Income Security Act, a federal law passed in the early 1970s to protect workers as employers were shedding their pensions.

ERISA had been applied similarly to other worker benefits, such as health plans and disability policies. Minick and his colleagues decided it could provide a legal framework for plans covering on-the-job injuries.

Texas courts agreed, even though, compared to workers’ comp, the ERISA-based plans gave employers critical advantages. Under ERISA, appeals are heard in federal court, rather than state workers’ comp courts. And in general, judges could rule only on whether a denial was reasonable — not whether it was fair. This gave employers far greater control.

As more and more companies adopted plans, in 1994 Minick struck out on his own. His consulting firm, PartnerSource, soon became a one-stop shop for companies looking to drop workers’ comp. For a flat fee, PartnerSource hooks companies up with insurance carriers, claim administrators, medical networks and defense lawyers. It also serves as the first line of defense, reviewing claims and advising companies how to avoid lawsuits.

Already, such plans cover nearly 1.5 million workers in Texas and Oklahoma — more than are covered under 21 states’ workers’ comp systems. PartnerSource writes about 50 percent of the opt-out plans in Texas and nearly 90 percent in Oklahoma, alone covering more workers than 14 state programs.

PartnerSource’s offices overlook a posh part of Dallas. The firm’s walls are a monument to Minick’s success, decorated with framed thank you letters from companies who’ve hired him. Inside his office, the mementos are different, reflecting his values. There are pictures of Boy Scouts trips he’s led and letters from charities he’s supported. The radiant plumage of a pheasant he shot is stuffed and mounted next to the doorway.

Minick sells his idea earnestly, speaking with a matter-of-fact certainty that disarms skeptics and defies arguments to the contrary.

With practiced ease, he rattled off the common gripes about workers’ comp: Companies dig in their heels at the first sign of a claim and turn workers into adversaries. Insurers don’t communicate about benefits, causing workers to hire lawyers. Doctors are often picked based on discounts rather than quality. And the system, he said, has created a huge bureaucracy in the name of protecting workers’ rights.

As a result, injured workers no longer have any accountability, he said. They can report claims late, skip doctors’ appointments and appeal every perceived wrong to workers’ comp court rather than trying to work it out with their employers.

Under opt-out plans, Minick said, companies must be engaged in the process, educating new workers about their benefit plans and managing their medical care if they get hurt. This control allows employers to better monitor workers’ progress and ensure they return to work as soon as possible, he said.

“This is not the Industrial Age,” he said. “Workers’ compensation systems grew up at a time when employers did not care about their employees. If one got hurt, you cast him aside and brought in the next immigrant to fill that job. Now companies are competing to be a best place to work.”

An analysis by Minick’s firm shows that opt-out plans save companies between 40 and 90 percent because they have lower costs per claim, get injured employees back to work faster and handle fewer disputes. That means greater employee satisfaction, Minick said.

If the analysis is correct, Minick’s plans would herald an important answer to the nation’s eroding workers’ comp systems.

But the only data available to assess his claims comes from his firm. More than 30 companies contacted by ProPublica either wouldn’t discuss their programs in detail or didn’t return calls.

Steve Schaal, associate general counsel of Tyson Foods, said the company opted out in Texas to give it more control over which doctors workers can see and “to try to get our injured employees the best possible medical care.” Schaal said the company hasn’t taken a position on expanding opt out to other states. Tyson wouldn’t provide an updated copy of its plan.

Employers aren’t required to submit any information about their plans with the state, since Texas doesn’t regulate opt-out plans. For several legislative sessions, employers have fought bills that would have required them to share their data.

PartnerSource’s analysis comes with some significant, unstated caveats: Employers with opt-out plans tend to work in safer industries like retail, which typically has less severe, less expensive claims. The plans also don’t offer entire categories of benefits that state laws require and give employers more options to exclude complicated claims.

For example, workers’ comp gives employees 30 days to report an injury in Texas. Under opt-out plans, employees typically must report by the end of the shift or in 24 hours or lose all benefits.

Costco, which saw its costs drop 53 percent after opting out, acknowledged in a 2012industry report that it denied some employees with legitimate work injuries because they reported late. Those workers, the report said, used their denial letters to get treatment under the company health plan.

Minick and other proponents say while plans can make exceptions, such rules ensure workers get medical care as soon as possible, speeding their recovery.

But public health experts say workers might not report minor injuries right away for valid reasons: They fear looking like troublemakers or worry about child care if they need to see a doctor or stay late filling out forms.

Or, like Rebecca Amador, they simply might not realize an injury’s severity.

Amador, a nursing assistant, was helping a patient transfer to a wheelchair at a Stephenville, Texas, nursing home in November 2013, when the chair’s brake unlocked, causing her to support the patient’s weight.

“I felt like a pinch in my back and I thought well, it’s been a long day, I’m tired,” said Amador, then 51. “So I paid no mind to it. I figured it would go away. Usually it goes away.”

She took a hot shower and went to bed. By the next morning, she remembers being in so much pain she could hardly breathe.

As soon as she got to work, Amador told her supervisor, who sent her to the hospital. Only 19 hours had passed. But her employer, Fundamental Long Term Care, rejected her claim, saying she had failed to report it by the end of her shift.

The company’s decision left Amador in a Catch-22. Even though her injury happened at work, the company’s Texas plan wouldn’t cover it. But because it was work-related, neither would her health insurance or short-term disability plan. Had she worked for Fundamental in one of the other states where it operates, her injury would have been covered under workers’ comp.

Amador sought help at a publicly funded health clinic, where her doctor recommended a specialist. But she couldn’t afford one. She tried light-duty work until her doctor warned she could do further damage.

Since then, Amador said, she’s been living off her son’s Social Security benefits and borrowing from a lawsuit settlement fund set up for him after his father died of mesothelioma. Her daughters help pay for medications, and she’s applying for Social Security disability.

Sitting in her trailer nearly two years after the incident, she said her back burns like she’s in a fire, and she can’t even carry a two-liter soda bottle.

“I would probably still be working there” if Fundamental had workers’ comp, Amador said. “Maybe I could have gotten better, maybe I could have gotten my therapy done, and I wouldn’t be in the situation I’m in.”

Reading the Fine Print
The fine print of opt-out plans contains dozens of opportunities for companies to deny benefits. Employers can terminate workers’ benefits for being late to doctors’ appointments, failing to check in with the company or even consulting their personal doctors.

One truck driver for a food and beer distributor complained in court documents that his direct supervisor accompanied him to medical appointments for his hernia — a requirement under the plan.

Some plans have restrictions that read like the terms of criminal probation. While they’re healing, injured workers at W. Silver, a steel products manufacturer in El Paso, are prohibited from leaving the area, even temporarily, or engaging in any “pleasure” that may delay recovery.

Sometimes the plans of PartnerSource and others abandon fundamental principles of workers’ comp.

For nearly 40 years, every state has covered occupational diseases and repetitive stress injuries, recognizing medical research that some conditions develop over time. But in Texas, a number of companies, including McDonald’s and the United Regional Health Care System, don’t cover cumulative trauma such as carpal tunnel. U.S. Foods, the country’s second largest food distributor, also doesn’t cover any sickness or disease “regardless of how contracted,” potentially allowing it to dodge work-related conditions such as heat stroke, chemical exposures or even cancer.

Since its beginning, workers’ comp has paid benefits regardless of whether the employer or worker was at fault. But several companies, including Home Depot, Pilot Travel Centers and McDonald’s, exclude injuries caused by safety violations or the failure to obtain assistance with a particular task.

Under workers’ comp, employees can’t be fired in retaliation for a claim. But employers that opted out argued that their workers weren’t entitled to that protection, and in 1998 the Texas Supreme Court agreed.

Gillespie, of the insurance association, said such provisions blatantly shift costs to taxpayers, in the form of Social Security disability, Medicare and Medicaid. Some plans state it explicitly: The plan for Russell Stover Candies said its benefits are secondary to all other sources of benefits. Home Depot requires its employees to “take whatever benefits are available,” including enrolling in Social Security disability.

And as Joe Becker, a truck driver in Abilene, Texas, discovered, workers no longer have the promise of lifetime medical care for on-the-job injuries.

Becker said he herniated several discs in his lower back in June 2012 when he hopped off his flatbed trailer after adjusting a load. His employer, Dent Truck Lines, paid for surgery that put rods and screws in his back. The surgery helped, but the screws dig into his back, occasionally hitting a nerve.

The doctor recommended surgery to remove the screws in 2014, medical records show. But because Dent’s benefit plan provides only two years of medical care, Becker was out of luck.

His boss, Cliff Dent, said he’d go out of business if he had to carry workers’ comp and doesn’t think Becker is “deserving.”

“The whole deal is just kind of silly, like most of these deals are — people looking for free money,” he said.

On the edge of being homeless, Becker, 44, applied and qualified for Social Security disability. He struggles to pay bills. For several weeks this spring, he said, he subsisted on a half a can of ravioli or SpaghettiOs a day.

“Sometimes I have to make a choice,” he said, sitting uncomfortably on his worn sofa. “Do I buy my pain meds or whatever other medicine that I need or do I buy groceries?”

So, Sue Me — Or, Rather, Arbitrate
Under the bargain of workers’ comp, employees gave up their right to sue their employers in return for guaranteed care and wages. The tradeoff in Texas is that injured workers covered by opt-out plans can sue their employers for negligence, potentially winning millions of dollars.

This risk is why many companies cap medical benefits at two years, Minick said. When injuries are severe enough to require lengthy medical care, many companies settle with workers, giving them a lump sum to cover future medical expenses and permanent disabilities.

On a more basic level, the threat of lawsuits, Minick and other proponents assert, creates a healthy incentive for companies to keep their workplaces safe.

But over the years, large companies have found a series of ways to reduce the risk of lawsuits.

Under workers’ comp, employees denied benefits can typically get hearings before administrative law judges. They can appeal further to a workers’ comp commission and even up to the state supreme court.

Under opt-out plans, workers’ only avenue of appeal is a committee set up by their employers for what is largely a paperwork review. Lowe’s hardware and Albertsonssupermarkets have contracted out their appeals to a Pennsylvania company called ELAP Services, which describes its mission as helping employers “control employee health care costs.”

ELAP’s president said the goal is to provide an objective review of the claim outside of the company’s basic business model of reducing medical bills.

But Gillespie said, “It’s potentially still somebody who either has a vested interest or is employed by somebody who has a vested interest.”

If the claim is still denied, workers can file an ERISA lawsuit in federal court. But the judge is typically limited to deciding if the company followed its plan or acted arbitrarily and capriciously — not whether the company was right.

A number of rulings by Texas courts have added to employers’ leverage, creating a higher bar for workers to prove their employers were negligent for common slip-and-fall and lifting injuries.

Many companies have further limited the risk by requiring employees to sign arbitration agreements. Instead of going before a jury, workers’ disputes are handled confidentially, out of court, before an arbitrator, typically a former judge or defense lawyer.

A 2010 survey of large employers with opt-out plans by a Stanford law professor found that 85 percent used arbitration agreements. Arbitration appeared to save companies money. Only a quarter of those companies had paid a claim over $500,000. And only 10 percent had paid more than one claim over $500,000 — compared with 38 percent of companies that didn’t use arbitration.

More strikingly, 81 percent of employers reported having no or hardly any “trouble with litigation.”

For many years, several companies that opted out required new employees to sign pre-injury waivers saying they wouldn’t sue the company if they got hurt. Texas banned that practice in 2001.

But many large meat and poultry companies, such as Tyson Foods, Cargill and Pilgrim’s Pride, continued to use post-injury waivers. After reports of workers signing waivers at hospitals — sometimes while still bleeding — the legislature tried to ban that too.

The debate over waivers presented a turning point for Minick to demonstrate his political savvy.

The largest group for employers that opted out, the Texas Association of Responsible Nonsubscribers, decided to support the ban, considering such practices abusive.

That rankled several members of the state’s business chamber, who had opted out and wanted to preserve their ability to avoid lawsuits.

With Minick’s help, they drafted legislation in 2005 that allowed waivers so long as there was a cooling off period of 10 days after the injury. Following the success of that measure, Minick helped chamber members form a new group for employers with opt-out plans. They called it the Texas Alliance of Nonsubscribers and hired the chamber’s longtime lobbyist, Richard Evans, who had been deputy legislative affairs director for George W. Bush when he was governor.

For the first time, Minick became his clients’ political partner, guiding their ambitions to shape legislation and the future of workplace injury benefits.

Recognizing the growth potential, the global insurance brokerage Arthur J. Gallagher & Co. acquired PartnerSource in 2009 in a deal that left Minick in charge. The financial terms weren’t disclosed, but documents filed with securities regulators in 2012 reveal that Minick and his partners, which included two charities, received $7 million in Gallagher shares as a bonus payment.

Minick would soon begin justifying the investment. Spurred by Texas clients eager to opt out in other states, PartnerSource started looking at opportunities elsewhere.

Their first target was due north: Oklahoma.

Sweepin’ Down the Plain
Year after year, Oklahoma’s legislature had tried to overhaul its workers’ comp system to lower insurance rates, which were higher than those in surrounding states. But the changes only brought modest drops.

In 2011, Minick brought a group of his frustrated clients together in the Oklahoma Injury Benefit Coalition, led by Hobby Lobby and the Unit Corp. drilling company. The group recruited Steve Edwards, the former state Republican Party chairman, as its lobbyist.

“Our claims process in Texas was a lot quicker and resolved a lot faster than anything we ever had in Oklahoma,” said Mark Schell, Unit’s senior vice president and general counsel. “We’ve had claims in other states including Oklahoma that are two to three years old because we can’t get them resolved. You have no control over them and they just drag on and on.” (Unit recently opted back in in Texas after a spate of serious injuries during the oil boom increased their legal costs. But Schell said he still believes in opt out.)

The group’s first effort to pass an opt-out bill was narrowly defeated in 2012. But they returned in 2013 with a new partner, the State Chamber of Oklahoma, and a more ambitious plan — not only to pass an opt-out option, but to rewrite the entire Oklahoma workers’ comp law.

The bill differed from Texas’ version in two ways. Employers would have to provide a minimum level of benefits matching state law. And, unlike Texas, employers would get to keep their immunity from lawsuits.

A chamber lobbyist and a Unit lawyer wrote the bill, incorporating language from various interests, including Minick. “I was one of the primary drafters,” Minick said.

“Is there a potential conflict of interest between our desire to see workers’ comp options adopted in other states and our firm’s revenue model? Yes,” he said. “But the conflicts of interest are only a problem when they’re not disclosed.”

One thing not disclosed: the Oklahoma bill copied language nearly verbatim from PartnerSource plans — making the definition of “accident” more restrictive than it was in traditional workers’ comp.

Walmart’s Texas plan, which Minick wrote the year before, defines “accident” as “an event involving factors external to the participant which was unforeseen, unplanned and unexpected,” that “occurred at a specifically identifiable time and place,” and “occurred by chance or from unknown causes.”

The Oklahoma bill defined it as “an event involving factors external to the employee that was unintended, unanticipated, unforeseen, unplanned and unexpected,” that “occurred at a specifically identifiable time and place,” and “occurred by chance or from unknown causes.”

Gillespie, of the insurance association, said the wording could be used to deny almost any claim because nearly every injury has a cause.

Since the law took effect last year, 59 companies, covering an estimated 22,500 workers, have opted out, ranging from small home health care agencies to national brands like Macy’s and Swift Transportation. Fifty-three have plans that were written by PartnerSource.

On paper, the benefits look similar to — or even better than — state workers’ comp. Both replace at least 70 percent of workers’ wages. Some plans pay 90 or even 100 percent of wages.

But there’s one big difference. Benefits under opt-out plans are subject to income and payroll taxes; under workers’ comp, they’re not. As a result, 80 percent of the plans actually provide lower benefits, ProPublica and NPR’s analysis found.

Minick said that the analysis missed a key point: Because the plans that offer benefits above the minimum are larger employers, the majority of workers under opt-out plans receive equal or higher benefits. In addition, he said, those companies start benefits on the first day of the injury instead of waiting three days, like workers’ comp does.

And their plans don’t have wage limits. As part of the 2013 law, the Oklahoma legislature capped benefit payments under workers’ comp at $561 a week. In March, ProPublica and NPR profiled an injured Goodyear Tire worker whose family was evicted from their home when his income dropped so much they could no longer afford the rent.

But the Oklahoma plans incorporate many of the rigid rules from Texas. As opt-out got underway, injured workers, lawyers and even the insurance commissioner quickly learned what that meant.

Learning the Hard Way

Last March, Rachel Jenkins was working as a job coach and personal care aide for ResCare, the nation’s largest private provider of services for the physically and mentally disabled, when a man attacked her client at an Oklahoma City facility.

While trying to pull the assailant off her client, she was thrown to the ground, injuring her shoulder. ResCare told her to bring her client home, and after finishing her shift, Jenkins went to the emergency room. The doctor prescribed pain medication, which knocked her out, she said.

The next day, ResCare sent Jenkins to its doctor, where she called the company’s claims hotline. The adjuster told her the injury wouldn’t be covered because she called 27 hours after it happened — instead of the required 24.

“They told me that I should have called the next morning at 10 o’clock. But I was asleep. I was on meds,” said Jenkins, a single mother with four kids, ages 1 through 12.

Jenkins’ supervisor, who witnessed the incident, complained to the corporate office, and a week later, ResCare reversed its decision.

To ResCare and Minick, who wrote the company’s plan, Jenkins’ case illustrates the discretion that companies have, in this case to accept claims even when they’re not reported on time.

“The system worked and took care of her and fully paid her benefits,” Minick said.

Not so, said Jenkins. Her shoulder remains in constant pain, she said, preventing her from returning to work fulltime.

In May, the company sent her for an MRI of her shoulder. Reading it, the doctor ResCare sent her to — an ear-nose-and-throat doctor at an urgent care clinic — noted inflammation and recommended that she see an orthopedic specialist, medical records show.

But ResCare’s adjuster wouldn’t authorize it. Instead, the company scheduled an independent medical exam with a doctor flown in from Arizona to review her case.

That doctor said the MRI didn’t reveal any evidence of an acute injury that could be causing the pain and instead showed a wearing of her rotator cuff caused by aging.

Jenkins is 32.

“What’s age got to do with anything?” she asked. Until the incident, “I didn’t have no problems with my shoulder at work.”

Workers’ lawyers in Oklahoma also noticed that many companies, including ResCare, were using a Dallas physician, Dr. Melissa Tonn, as the medical director responsible for managing workers’ care.

Tonn, they learned, not only once shared an office with PartnerSource, she was Minick’s wife.

The situation had been an open secret in Texas, where lawyers grumbled privately for years. “Melissa Tonn has a vested interest in PartnerSource making more money,” said James Grantham, a Houston lawyer who has handled about 700 opt-out cases in the last few years.

As medical care is often the most expensive part of a claim, Tonn can greatly influence how much claims cost. And that ultimately affects how much money PartnerSource saves employers, allowing it to keep clients happy and recruit more business.

“So if Melissa Tonn says you don’t need back surgery, PartnerSource will profit from that,” Grantham said. “It’s absolutely rigged.”

Tonn insisted her assessments were based on workers’ conditions and were unaffected by the interests of employers or PartnerSource.

“The decisions I make are not based on how much money is going to be saved,” Tonn said.

Minick said his wife stood on her own credentials as the former director of two hospitals’ occupational health programs and as past president of both the Texas College of Occupational and Environmental Medicine and a national organization of physicians who evaluate disabilities.

The couple were already independently successful, Minick said, when they met at a workers’ comp opt-out conference. As their businesses grew and they started having clients in common, they took steps to keep them separate, he said. Tonn moved to an office one floor up in the same building. And Minick discloses the relationship in client contracts.

“They can visit with whatever vendor they want to,” Minick said. And Tonn is “one of them that they should consider.”

While opt-out plans have to be submitted to Oklahoma’s insurance commissioner, there is little review.

ProPublica and NPR obtained more than 2,000 pages of internal emails between the Oklahoma Insurance Department and companies that wanted to opt out.

The emails regarding a chain of long-term care facilities are typical. An insurance department lawyer notes that a paragraph is missing a period, causing a run-on sentence. But he fails to point out that the paragraph promises “no interference” with the doctor-patient relationship while at the same time warning workers that seeing their own doctor “may result in a complete denial” of benefits.

Gordon Amini, the department’s general counsel, said the insurance commissioner doesn’t have the power to question such provisions and can’t reject plans under the law.

“We are supposed to confirm; it never uses the word ‘approve,’ ” he said.

The law also states that settlements must be voluntary. But our review of Oklahoma plans written by PartnerSource showed that nearly every one contains a section titled “Mandatory Final Compromise and Settlement,” which instructs workers that “no further benefits will be payable” if they refuse the company’s offer.

After being made aware of the inconsistency by NPR and ProPublica, Amini said the insurance department “immediately took action” and contacted PartnerSource to revise it.

“The reality is, under the current scheme there is no regulation of these plans,” said Bob Burke, a longtime Oklahoma workers’ comp attorney. He said it’s setting a dangerous precedent. “We can’t as a society say, ‘Okay, employers, write whatever plan you want to write, provide what benefits or lack of benefits you want to, set up whatever scheme you want to award those benefits, and by the way, no one is looking over your shoulder.’ ”

‘Where Else Can We Do It?’
Studying the map in PartnerSource’s office, Minick surveyed the country like a commander strategizing the next offensive.

“Tennessee,” he said. “There’s more dots there than anywhere else. You get all these Tennessee companies that know what it’s like to have better care, lower costs. So then they start saying, ‘Where else can we do it?’ ”

In 2012, Tennessee seemed primed to allow employers to opt out of workers’ comp. For the first time in at least a century, Republicans controlled both legislative chambers and the governor’s office. Employers were already pushing for major changes to the workers’ comp system. And the new governor’s family owned Pilot Travel Centers, which had opted out in Texas.

But after a series of public meetings, the state workers’ comp division hired consultants who produced a scathing report, raising concerns that letting companies opt out would shift costs to government programs.

“Giving firms this option would have potentially significant consequences on some injured workers, other Tennessee employers, and the state taxpayers generally,” the consultants wrote.

The legislature passed an overhaul of workers’ comp in 2013, but it contained nothing about opting out.

Despite the defeat, Minick started pulling together employers and others. In December 2013, they formed a group called the Association for Responsible Alternatives to Workers’ Compensation.

K. Max Koonce, Walmart’s senior director of risk management became chairman. Nordstrom’s vice president of risk management was appointed president, Lowe’s vice president of risk management was vice president, and the chief executive of the Combined Group insurance company was treasurer. Minick became secretary.

The rest of the board was made up of top managers at Kohl’s, J.B. Hunt, Big Lots, Sysco, Safeway, Brookdale Senior Living and others in the insurance industry. Joined by Macy’s, Whole Foods and Brinker International (owner of Chili’s Grill & Bar), they paid as much as $25,000 each to finance ARAWC’s efforts, according to association webpages.

The group planned to go state by state to pass opt-out legislation, starting with the South.

The association’s address was the lobbying firm of Richard Evans, whom Minick had worked with at the Texas alliance. In addition, the group hired Edwards, who ran the successful Oklahoma effort. In each new state, they would team up with connected local lobbyists to navigate the politics.

In February 2015, a bill pushed by ARAWC was introduced in the Tennessee legislature that contained a mix of the Texas and Oklahoma laws. Like Oklahoma, employers had to provide a minimum level of benefits — up to three years of medical care, or $500,000. That was less than the benefits provided by the state’s workers’ comp law, which set no limits on medical care.

But, like Texas, catastrophically injured workers could sue for higher benefits. Their employers would face limited damages and have additional legal defenses that Texas employers don’t.

The bill stalled in April, after it failed to be endorsed by the state’s workers’ comp advisory council. But supporters plan to revive it in the next legislative session.

With the Tennessee push underway, ARAWC settled on its next target: South Carolina.

As lobbyists, it hired former political directors of the national and state GOP.

A bill was introduced in the state assembly in May, with the goal of generating discussion before the legislature reconvenes next year.

Rep. David Hiott, a small business owner frustrated with workers’ comp, said he sponsored it after receiving a synopsis of the bill from another legislator and ARAWC’s lobbyists. “They told me they would tell me more about it this fall,” he said.

The bill represented a new gambit for ARAWC and Minick.

The Tennessee campaign “drew so much criticism from employee advocates saying that we were trying to reduce benefits,” Minick said, “that we said fine, just to prove that’s not the point, the South Carolina bill was introduced to say we’ll pay benefits higher than workers’ comp.”

While workers’ comp replaces 66 percent of wages, South Carolina employers that opt out would have to pay at least 75 percent, albeit taxable. They would not be allowed to cap medical benefits and would have to match the state maximum of 500 weeks of death benefits. Burial benefits are three times as high.

“The intent of this movement is to pay better benefits,” Minick said.

But in Texas, where the movement began, people like Krystle Meloy are hard-pressed to say how it has made things better for injured workers and their families.

Meloy was 23 with a 4-month-old daughter when her husband, Billy Walker, fell 180 feet from a communications tower in 2012.

Under the company’s opt-out plan, she and her daughter, Kaylee, were entitled to $250,000 for his death. She tried to sue after federal investigators found the company had violated safety laws. But the company filed for bankruptcy a few weeks later.

Under workers’ comp, she would have received 75 percent of her husband’s wages until her daughter finished college and until death if she never remarried. Based on his wages in previous years, that would have guaranteed Meloy and her daughter at least as much as the opt-out plan and likely far more — potentially $1 million or more, depending on the circumstances.

On a recent day, Kaylee, now 3, climbed up on a cushy chair and flipped through a small photo album containing pictures of the day she was born.

“See, look, mama’s going to doctor,” she said in a chipmunk voice. Turning to a picture of her father cradling her in his arms, she giggled. “Look at him. Daddy Billy.”

Meloy receives Social Security survivor benefits and is applying for food stamps. She’d like to get a job, she said, but can’t afford daycare.

“I have to go through this for the rest of my life; I’m having to teach our daughter who her daddy is through a picture,” she said. “If other states are considering not having workers’ comp, I mean, look what happened to me.”

Hearing her story, Minick, who climbed radio towers when he was in college, paused reflectively.

“This is a difficult situation, it sounds like,” he said. “There’s no occupational injury system that we’ve found yet that will provide perfect results in a 100 percent of cases.”

What’s more important, he said, was which system would provide the best results in most cases. In an earlier interview, Minick described what drove him to launch his crusade to remake America’s system for caring for injured workers.

“All you can do is pray that the Lord gives you a calling where you can really do good for society,” he said. “That’s what gets me up every day, knowing that I’m getting better employee satisfaction and generating economic development. That’s as good as it gets.”

NPR intern Courtney Mabeus contributed to this report. Produced by Emily Martinez.

This story was co-published with NPR.

Michael Grabell covers economic and labor issues for ProPublica.

Howard Berkes is a correspondent for the NPR Investigations Unit who has reported on coal mine and workplace safety.
This article originally appeared in The Texas Tribune at http://www.texastribune.org/2015/10/14/inside-texas-lawyers-campaign-ditch-workers-comp/.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

Black Law, PC handles cases for injured workers against employers who do not have Workers Compensation. Contact Black Law, PC for a free consultation.

The post Are you really covered by Workers Comp? appeared first on Black Law, PC .

Texas Leads Nation in Worker Deaths

Thu, 17 Sep 2015 21:33:00 GMT

Workplace Deaths Up in Texas, Which Still Tops List
by Jim Malewitz, The Texas Tribune
September 17, 2015

The number of people killed on the job in Texas increased in 2014, and the state retained its grim perch atop all others in workplace deaths, according to preliminary federal data released Thursday.

Texas saw 524 fatal workplace injuries last year, compared with 508 a year earlier, the U.S. Bureau of Labor Statistics reported. That 3 percent increase was slightly higher than the growth of workplace fatalities nationwide (2 percent). The 2014 figures are preliminary, and the agency will revise them next spring.

The next highest death toll behind Texas was in more populous California, where 334 workers died last year.

Texas has led the nation in total workplace deaths in 11 of the past 14 years.

Besides California, other large states saw far fewer on-the-job deaths last year than Texas. Florida, for instance, had 239 and New York registered 178, the latest figures show.

Adjusting for population, Texas ranked 17th in workplace deaths in 2014.

Of course, Texas’ booming economy over the past decade has kept most of its residents employed, while drawing thousands of workers from other states — a significant factor when considering nationwide fatality data. The phenomenon meant a surge of jobs in particularly dangerous industries such as trucking, construction and oil and gas production.

Still, last July, David Michaels who heads the Occupational Safety and Health Administration, lamented lax safety efforts in the state’s construction industry in particular, saying, “workers are not being given adequate protection” on job sites and in the state’s safety net.

Texas, for instance, is the only U.S. state that does not require employers
to carry workers’ compensation insurance. Some companies offer private insurance instead, but last spring, state officials said at least a half-million workers are not covered at all.

In 2014, transportation accidents killed far more Texas workers — 237 — than any other event.

Nationwide, transportation accidents accounted for 40 percent of all workplace deaths. The bureau says those numbers will probably rise when it revises the data, because it has yet to receive some key sources of information.

Hispanic or Latino workers accounted for nearly 17 percent of the U.S. deaths. About 40 percent of those workers were born in Mexico. State-by-state ethnic and racial data were not available Thursday.
This article originally appeared in The Texas Tribune at
http://www.texastribune.org/2015/09/17/workplace-deaths-texas-us-leader/.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

The post Texas Leads Nation in Worker Deaths appeared first on Black Law, PC .

U Penn announces Leukemia Treatment Breakthrough

Tue, 17 Feb 2015 00:53:00 GMT

The University of Pennsylvania School of Medicine announced the FDA has awarded the coveted “Breakthrough Therapy” designation for a new leukemia treatment. The new therapy involves removing a patient’s T cells, genetically reprogramming them and infusing the cells back into the patient where they multiply and attack tumor cells.

Clinical trials employing the new therapy began in the summer of 2010 in patients with relapsed and refractory chronic lymphocytic leukemia (CLL).

Trials are currently underway for adult and pediatric patients with acute lymphoblastic leukemia (ALL), and patients with non-Hodgkin’s lymphoma (NHL) and myeloma. Penn is also investigating the next generation of therapies, with trials for mesothelioma, ovarian, breast and pancreatic cancer.

This is exciting news and offers hope to thousands of cancer patients diagnosed with leukemia, non-Hodgkin’s lymphoma and myeloma. Exposure to benzene in consumer products and at work has been associated with an increased risk of developing these diseases.

Check out the U Penn Press Release by clicking here.

The post U Penn announces Leukemia Treatment Breakthrough appeared first on Black Law, PC .

Medicare Reporting Change

Tue, 27 Jan 2015 00:52:00 GMT

The Centers for Medicare and Medicaid Services (CMS) has increased the reporting threshold from $300 to $1,000 dollars in physical trauma-based liability insurance settlements. The new reporting threshold applies to cases where a recovery demand from CMS had not been issued as of February 18, 2014.

This means that physical trauma-based liability settlements of $1,000 or less do not need to be reported to CMS and recovery of Medicare’s conditional payment amount for medical treatments from these settlements will not be pursued.

CMS is amending the Medicare Secondary Payer User Guide to reflect the reporting change.

You can view the Official CMS Alert by clicking here .

The post Medicare Reporting Change appeared first on Black Law, PC .

Propecia Litigation Overview

Fri, 02 Jan 2015 00:50:00 GMT

Black Law, PC is committed to representing men who are struggling with the sexual side effects of Propecia.

Background

The development of finasteride, the active ingredient in Merck’s Propecia/Proscar, began in the Dominican Republic in 1974. A young endocrinologist, Dr. Julianne Imperato-McGinley published her research findings on a pseudo-hermaphroditic family she had studied in the Dominican Republic. She noticed the males in the family had a genetic deficiency of the Type II 5-alpha reductase enzyme, their prostate glands were 1/10th their normal size, and that as adults, none of the males ever went bald.

In 1980, Merck scientists took note of Dr. Imperato-McGinley’s work and created a chemical compound (finasteride) which mimicked the 5-alpha reductase enzyme deficiency. Merck’s first finasteride patent was approved in 1988. Initially, Merck was attempting to target older men with enlarged prostates.

The 5mg dose of Finasteride (Proscar) was approved by the FDA in 1992 for the treatment of benign prostate hyperplasia (BPH). The patent for Proscar expired on June 19, 2006. Proscar was commonly prescribed off-label for hair loss and patients were routinely told to cut the pill into four parts.

The 1mg dose of Finasteride (Propecia) was approved by the FDA in 1997 for the treatment of male pattern baldness (androgenic alopecia). The patent for Propecia expired on November 5, 2013.

Mechanism of Action

In males, the two most important androgens for normal sexual function are testosterone and dihydrotestosterone (DHT). Testosterone is the weaker of the two androgens. DHT is directly responsible for the shrinking of the hair follicles leading to hair loss.

Finasteride interacts with the production of testosterone in the body. Normally, testosterone functions as a pro-hormone. A pro-hormone is a precursor of another hormone and usually has minimal hormonal effect by itself. Testosterone is converted in the body by the 5-Alpha Reductase (5AR) enzyme into DHT.

Finasteride blocks the conversion of testosterone into DHT. Normally, testosterone binds to the 5AR enzyme in the reproductive tissues where it is converted to DHT. The chemical structure of finasteride is similar to the chemical structure of testosterone. Finasteride chemically and irreversibly combines with the 5AR enzyme and inhibits the conversion of testosterone into DHT. By limiting the amount of DHT in the blood stream, finasteride reduces the damaging effects of DHT on the hair follicles and encourages hair growth.

Side Effects and Warnings

There are several possible side effects of Propecia including, infertility, erectile dysfunction, impotence, diminished libido, decreased sperm production, breast enlargement, breast cancer, shrinkage of the genitalia, and decreased ejaculate volume.

In 2006, the Swedish Medical Products Agency began an investigation of persistent sexual side effects which continued even after users stopped taking Propecia. By 2009, Sweden concluded that Propecia could lead to permanent sexual dysfunction. In response, Merck added “persistence of erectile dysfunction after discontinuation of treatment with Propecia” to its warning label in Sweden, Italy, and the United Kingdom.

However, it was not until June of 2011 that Merck adding the warning to its U.S. label. In the final pages under “Post Marketing Experience”, the label states: “breast tenderness and enlargement; depression; hypersensitivity reactions including rash, pruritus, urticaria, and swelling of the lips and face; testicular pain; erectile dysfunction that continued after discontinuation of treatment ; and male breast cancer.”

Additionally, Merck modified the July 2011 Patient Insert to say:

“What are the possible side effects of Propecia?…In clinical studies, side effects from Propecia were uncommon and did not affect most men. A small number of men experienced certain sexual side effects. These men reported one or more of the following: less desire for sex; difficulty in achieving an erection; and, a decrease in the amount of semen. Each of these side effects occurred in less than 2% of men. These side effects went away in men who stopped taking Propecia. They also disappeared in most men who continued taking Propecia…In general use, the following have been reported: breast tenderness and enlargement; depression; allergic reactions including rash, itching, hives, and swelling of the lips and face; problems with ejaculation; testicular pain; difficulty in achieving an erection that continued after stopping the medication; and in rare cases, male breast cancer.”

In April of 2012, Merck finally modified the Propecia label and Patient Insert to disclose the risk of permanent sexual dysfunction and “infertility and/or poor seminal quality”.

Pending Litigation

There are two epicenters of Propecia litigation: state court in Middlesex County, New Jersey and in the federal MDL in the Eastern District of New York.

New Jersey Litigation

All New Jersey Propecia cases have been consolidated in Middlesex County in front of the Honorable Jessica R. Mayer. There are over 350 cases pending in Middlesex County.

Federal MDL-MDL 2331 In re Propecia (Finasteride) Products Liability Litigation

There are over 700 cases pending in the Brooklyn Division of the Eastern District of New York. The cases are pending before the Honorable John Gleeson. Judge Gleeson is a Bronx native, received his B.A. from Georgetown University and his J.D. from the University of Virginia. He clerked for Boyce Martin on the 6th Circuit and was in private practice at Cravath, Swaine & Moore from 1981-1985. He was an assistant U.S. Attorney in the Eastern District of New York from 1985 to 1994 where he was noted for his prosecution of Mafia cases, including the prosecution of John Gotti.

Procedural Posture

The MDL is still in its early stages. Although the PSC was appointed in June of 2012, the parties have only recently agreed to a Plaintiff Profile Form (Fact Sheet). Fact Sheets are due within 135 days of direct filing or transfer to the MDL.

For the latest Propecia news, please visit www.mypropeciacase.com .

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