Month: January 2019 (Page 2 of 3)

Fighting with a Non-Cooperative Witness in My L&I Case Deposition

As part of a deposition for an L&I claim today, I engaged in a pretty harsh word fight with an expert witness. Admittedly, I was unhappy with the opinions given by the witness because I believe those opinions to be willfully ignorant of some important established facts in the case. In truth, this is not an unfamiliar circumstance. There are many times I find myself cross examining a witness with whom I don’t agree. After all, if we didn’t have disagreement, there would be no dispute in the first place. Usually I accept the fact that we have a difference of opinion; I ask the questions that I believe help illustrate the flaws in the opinion and I move on.

Today, for some reason I couldn’t keep my mouth shut and after the deposition I continued to press the witness regarding the basis of the opinions given. The conversation got heated and it is probably safe to say there is no love lost between the witness and me. Because of my personality, a part of me feels uncomfortable and embarrassed that I had such a heated exchange with the witness because I believe have a duty to maintain a certain level of professionalism and these kinds of heated exchanges fall below what I feel is professional. Another part of me is proud of myself.

One of the problems I see in workers’ compensation is that so many of us representing injured workers are busy fending off the latest unfavorable determination made in a claim, that we don’t spend as much time as we should advocating for positive changes within the system. The issue I was sparring with this witness on involved a Permanent Partial Disability (PPD) rating for the low back in which individuals are assessed with a Category rating based upon a specific administrative code (WAC). However, the Department of Labor and Industries (L&I) has developed a worksheet that is provided to doctors for them to use to arrive at a rating under that WAC. Some people argue that the worksheet yields more favorable ratings, and some argue it yields less favorable rations, but most experienced attorneys agree that it is inconsistent with the WAC. In my exchange, I was trying to get the witness to really think about the words in the WAC and provide me with a rational explanation for the opinion given considering the objective medical evidence and the established facts of the case. It was clear from our exchange that the witness was struggling with reconciling an opinion based on the worksheet with an opinion wasted on the language of the WAC.

Having had the reminder of the day to give this issue careful consideration, I’ve reached the conclusion that instead of engaging in a heated conversation with a singular witness, my energy would be better spent trying to effectuate change with respect to the use of this misleading PPD rating worksheet.

Work Injuries in the Hospitality Industry

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Nearly one million people are employed as maids and housekeepers at hotels, motor hotels, resort hotels and motels, according to the National Institute for Occupational Safety and Health (NIOSH) and the Bureau of Labor Statistics (BLS). Approximately 89% of housekeepers are female and self-identify with an ethnic minority group. About 44% are Hispanic or Latina and 22% are another minority.

Context and background

As part of their daily work routines, these individuals make beds, restock linens, dust, vacuum and perform a multitude of other cleaning activities in guest rooms and throughout the facility. Very high proportions (77-91%) of housekeepers self-report experiencing pain in areas including the low back, upper back, and shoulders, which they attribute to work activities. In fact, in 2010, housekeepers had the highest reporting rate of all workers for overall injuries resulting in significant annual claims costs.

Medical conditions

According to the National Occupational Research Agenda (NORA) workplace hazards for maids and housekeepers may include: musculoskeletal disorders from bending, pushing carts and making beds; traumatic injuries from slips, trips and falls; respiratory illnesses from cleaning products that contain substances such as irritants and bleaches; skin reactions from detergents and latex; and infectious diseases from agents such as biological wasted and bloodborne pathogens found on broken glass and uncapped needles.

On its Hotel-Motel Industry Safety & Health – Custodial Housekeeping and Janitorial Cleaning page, the Washington State Department of Labor and Industries (L&I) recognizes similar hazard exposures including: awkward postures and lifting, chemicals, slops and trips, and sprains and strains. L&I also has several informational videos regarding the known dangers and hazards in the housekeeping industry. This includes a training video that addresses a number of topics such as safety and cleaning procedures, back injury prevention and chemical safety.

Summary

Workers in this injury laden industry are often minorities (as noted above) and are often paid minimum wages. It is also a difficult job to modify to light duty and many of the workers in this profession don’t possess education or skills for other less strenuous work. Therefore, when disabling injuries occur, these workers often face devastating circumstances due to their inability to work. Likely due to the industry wide costs associated with administering these claims, workers in this industry (especially those working for larger chains) also tend to face aggressive claim management from third party administrators. As a result, it is not uncommon for workers in this industry to seek legal guidance and representation, even when they realistically cannot afford the associated attorneys’ fees.

Board of Industrial Insurance Appeal – Process and Procedure

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I am often asked about the Board of Industrial Insurance Appeals (Board or BIIA) and its role in workers’ compensation claims and cases. The Board of Industrial Insurance appeals is a Washington State agency… Continue to the full article.