Accidents Caused by Fatiguing Employment Require a Remedy

Employees sometimes are directed to work long and stressful hours and then if they become injured they are left without a remedy.  A Court recently held that even though an employee who was killed as a result of fatigue related accident while driving home after working  22 hours straight on "Black Friday" for Wal-Mart was without a remedy.

The Court reasoned that the law barred any recovery. The Workers' Compensation Act is not an available remedy the Court held since the injured occurred off the premises of the employer and not under the employers control. Also a civil action was barred by the deceased's estate against Wal-Mart since the Court reasoned that, "...The imposition of a duty upon an employer for injuries sustained by an employee, arguably arising out of the fatiguing conditions of employment, yet occurring outside of the course of employment would alter the necessary balance struck by the New Jersey legislature when defining the scope of compensable injuries." 

Despite the changing economic times, the laws should keep pace with the growing momentum of making the workplace safer. Regressive employment practices are not the solution for a healthier workplace. It is more important than ever that the Legislature revisit working conditions and strike a balance to provide a regulatory response to injuries and accident caused by such adverse situations.

See: Aylward v Wal-Mart Stores Inc., CA No. 10-4799, 2011 WL 2357762 (D.N.J.) Decided June 9, 2011

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.

Related articles

• Blowing the Whistle on Unsafe Workplace Conditions Gets a Boost (workers-compensation.blogspot.com)
• Penalties, Paper and The Injured Worker (workers-compensation.blogspot.com)
• Supreme Court limits Wal-Mart sex bias case (boston.com)

Concentra Denied a Protective Order in Wal-Mart RICO Lawsuit

Concentra was denied a protective order in a pending Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq. claim filed in Federal Court in Colorado. The plaintiffs allege that Wal-Mart withheld, delayed, denied and dictated treatment to Wal-Mart workers who filed workers' compensation claim.

In the case, Concentra, a health care company, sought to prohibit plaintiff's attorneys from contacting any Concentra Medical Staff member, former or current, on an ex-parte basis. The Court denied the request.

Gianzero v. Wal-Mart Stores, Inc., 2011 WL 1740624 (D. Colo. 2011) Decided May 5, 2011.

Related articles

• Colorado Court Allows RICO Case to Proceed Against Wal-Mart (workers-compensation.blogspot.com)
• RICO Issues Can Be Cured With A Single Payer Medical System (workers-compensation.blogspot.com)
• Worker's Comp, Walker, and Wisconsin's Wailing (workers-compensation.blogspot.com)
• Missouri Mulls More Work Comp Reform (workers-compensation.blogspot.com)
• Texas Disallows Work Comp Retaliation Suits Against State Based on Sovereign Immunity (workers-compensation.blogspot.com)

Colorado Court Allows RICO Case to Proceed Against Wal-Mart

A partial summary judgment motion was denied by Judge Robert E. Blackburn in a pending Colorado case against Wal-Mart where the plaintiff alleged that the employer,  working in concert with other defendants "dictated and interfered unlawfully " with employees who were entitle to medical treatment flowing from occupational accidents. 

The Court stated that, "The plaintiffs allege that the defendants improperly required, and continue to require, treatment providers to follow protocol notes that improperly direct and/or restrict the medical treatment provided to injured Wal-Mart workers under the Act. The plaintiffs allege that the policies implemented by the defendants result in delays in the injured workers' receipt of treatment, denial of prescribed medical treatment, withholding of benefits, and/or the inability of the injured workers to obtain prescribed medical treatment."

The case involves a certified class of plaintiffs. The defendants had sought to limit the number of claimants by shortening the statute of limitations for the viability of the claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961-1968. Since the relevant time periods were not evident on the face of the complaint, and the defendants did not offer proof to establish it, the Court denied the motion.

Gianzero v. Wal-Mart Stores Inc., 2011 WL 1085647 (D. Colo. 2011) Decided March 24, 2011.

Related articles

• RICO Issues Can Be Cured With A Single Payer Medical System (workers-compensation.blogspot.com)
• Professional Athletes Deserve Fair Workers Compensation (workers-compensation.blogspot.com)
• The RICO Consequences of Managing Health Care in Workers Compensation (workers-compensation.blogspot.com)
• Injured Workers Assert Class Action Claiming Wal-Mart Violated RICO Act (workers-compensation.blogspot.com)
• Stay Lifted in RICO Class Action Against Wal-Mart (workers-compensation.blogspot.com)

RICO Issues Can Be Cured With A Single Payer Medical System

Guest Blog by Jon Rehm

Vermont's proposed single payer system would seperate medical care from indemnity. Vermont's single proposed single-payer system would likely also provide a primary care doctor to every resident of Vermont. This would benefit injured workers because employees would have more control over their medical care and their employers and the employers workers comp insurance companies would have less control.

In my practice, I often hear my clients who don't have insurance going to doctor's reccomended by their employers or insurance companies. These are occupational doctors. My client's with insurance are often steered away from their family doctor's to occupational medicine doctors. A leading blog written from the perpective of workers comp insurers, Workers Comp Insider states occupational doctors have a "return to work" focus. However in Colorado, Concentra, a nationwide occupational health provider is being sued under the Civil RICO statute for conspiring with Wal-Mart to unlawfully limit the medical care of Wal-Mart's employees. A "return to work focus" is a eupheism for letting employers and insuers do whatever they want in regards to the medical care of their workers. Irregardless of whether a court finds relationship between Concentra and Wal-Mart lawful, it's undeniable that employers and insurer's have a close relationship with occupational medicine doctors. By giving everyone a family doctor, the worker's doctor, not the employer's doctor will direct the workers medical payment.

The insurance industry argues that letting family doctor's control medical care will increase indemnity costs because family doctors will try to make their patient's happy by allowing them to "vacation" while collecting indemnity. But if an employee is able to work, many doctor's will tell you that working is good for over all well-being. The insurance industry also seems to assume that all doctors are bleeing heart patient advocates. This ignores the fact that doctors often share the widespread perception that injured workers are somehow "milking the system."

While the insurance companies fear of how a single payer system could change the workers' compensation system is overblown, I believe that employers would have less ability to wrongfully manipulate the care of their injured workers under a single-payer system.

Jon Rehm practices in Lincoln, Nebraska (Rehm, Bennett & Moore, PC, LLO). He concentrates his practice on representing injured workers and their families. He hold a  degree in journalism from Northwestern University(B.S.) and a law degree from Nebraska College of Law(J.D.).  Jon is a member of the Nebraska State Bar Association, the Nebraska Association of Trial Attorneys and the Workplace Injury Law Advocacy Group.

Related articles

• Activists to Vermont Legislators: Enact Single Payer Now (health.change.org)
• Vermont Universal Health Care to Embrace Workers Compensation (workers-compensation.blogspot.com)
• The RICO Consequences of Managing Health Care in Workers Compensation (workers-compensation.blogspot.com)
• Obama Care for All (workers-compensation.blogspot.com)
• Industry Coalition Wants to Cut CMS Conditional Payments (workers-compensation.blogspot.com)
• Wal-Mart Sued For Limiting Employee Medical Care (medicalnewstoday.com)
• For Oregon and Vermont, health-care waivers a big deal (seattletimes.nwsource.com)
• "Vermont Report Says State Can Save More Under Single Payer Than Obamacare" and related posts (wonkroom.thinkprogress.org)

The RICO Consequences of Managing Health Care in Workers Compensation

It is one thing to provide workers' compensation coverage to injured employers and it is another issue how involved an employer can be in managing  medical care. That right was never addressed by the crafters of the workers' compensation system almost a century ago.

That dilemma is now being addressed by a Federal Judge in Colorado where a class action lawsuit pending against Wal-Mart for micro-managing and restricting medical care to injured workers.  Brooks Magratten, Esq, has addressed these issues in a recently authored article. "Class Action Attacks Wal-Mart Health Care Model." 25 No. 13 WJEMP 1 (Jan. 25, 2011). The landmark action has the potential to expand workers compensation medical care into the umbrella of a national universal medical care system.

The plaintiffs in the pending action, all former and present Wal-Mart employees, are seeking treble damages against the mega-corporation, with an aggregate market value of $108.8 Billion, for interfering with medical care. Judge Robert Blackburn has denied Wal-Mart's motion to dismiss, now setting the stage for a definitive test of the workers' compensation medical system nationally.

Related articles

• Out-Of-State Medical Treatment Deemed Authorized by Workers' Compensation Court (workers-compensation.blogspot.com)
• Injured Workers Assert Class Action Claiming Wal-Mart Violated RICO Act
• Too Old to Get Workers Compensation (workers-compensation.blogspot.com)
• Benefits Available Under the Zadroga 9/11 Victim Compensation Fund
• The World Trade Center Program Expands The Path to Federalization

Stay Lifted in RICO Class Action Against Wal-Mart

A Federal Judge has lifted a stay in a class-action law suit against Wal-Mart that charges the company with conspiring with workers' compensation insurance companies to limit medical treatment for injured workers. The stay was lifted by U.S. District Court Judge Robert Blackburn on July 1, 2010. 

The claim, on behalf of 7,000 Colorado Wal-Mart workers charges conspiracy with: Claims Management Inc., American Home Assurance Co. and Concentra Health Services Inc., to control medical treatment, who may have been entitled to treatment under the Colorado Workers Compensation Act. Other allegations of fraud are also asserted.

Gianzero et al. v. Wal-Mart Stores et al., No. 09-00656, stay lifted (D. Colo. July 1, 2010).

Click here for additional articles about Wal-Mart and workers' compensation. 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 asbestos related illnesses.