Stats, Laws and Videotape

The number of fatal work injuries increased in more than half of all states, while fraud in the workers’ compensation market skyrocketed. Plus a number of new workers’ compensation laws hit the books as 2011 came to a close.

Fatal workplace injuries climbed in many states, according to the U.S. Bureau of Labor Statistics’ (BLS) annual report. Private industry employers reported 4,070 private industry work-related fatal injuries in 2010, the latest data available.

The number of fatal work injuries declined in 23 states between 2009 and 2010, while 27 states reported more fatal injuries during the same period.

The sporadic numbers reported in 2010 are the result of a myriad of issues faced by budget-tightening states and industries. While those states reporting fewer deaths touted newly implemented safety measures, those reporting an increase in workplace fatalities cited decreasing inspections and training inadequacies.

Construction accounted for the highest rate of fatal injuries, while more than one out of every five fatalities involved highway accidents, according to the report. Men and those workers age 65 and older were more likely to sustain a fatal work injury. Unfortunately, fatal work injuries in the mining sector reportedly increased by 74 percent in 2010, according to preliminary BLS figures.

On the Job Fatalities Increase

One of the states where workplace death rates soared was Washington. During 2010, 86 men and women were killed on the job, according to a report on work-related fatalities by the state’s Department of Labor & Industries (L&I).

Among the report’s findings, deaths involving farm workers, loggers and workers in the fishing industry accounted for 20 of the fatalities in 2010. Seven workers died in tractor-related accidents, which prompted L&I to issue a hazard alert to the agriculture industry.

In North Carolina, where work place deaths rose as injuries reportedly declined, a reduction in workplace inspections was cited as a reason for the fatality increase. There were 48 fatal workplace accidents in North Carolina in 2010, up from 34 in the previous year.

State Decreases in Workplace Deaths

Oregon experienced a decline in workplace fatalities. Seventeen workers died on the job during 2010, according to state figures.

The total represents an all-time low in Oregon, where on-the-job injuries have declined in recent decades. Reported workplace injuries decreased more than 50 percent since the late 1980s.

New Mexico reported 38 work-related deaths in 2010, a decrease from 2009 figures.

The biggest decrease in deaths in 2010 was in fatalities related to transportation.

New Workers’ Comp Laws Take Effect

Across the country, new workers’ compensation laws took effect addressing everything including convicted felons’ and illegal immigrants’ workers’ compensation benefit eligibility to whether two employers can be held jointly responsible for providing benefits.

In Illinois, a new law inspired by a former state trooper’s high-speed freeway wreck bars state employees injured while committing crimes from getting workers’ compensation.

The measure follows the 2007 wreck involving Matt Mitchell. He was driving more than 100 mph while using his cell phone on Interstate 64 in southwestern Illinois, when his cruiser crossed the median and slammed into a car, killing two sisters at the scene.

Mitchell pled guilty to reckless homicide charges and was sentenced to 30 months of probation. His claim for workers’ compensation for injuries sustained in the crash was denied by an arbitrator, who ruled that Mitchell’s injuries resulting from the wreck were not “arising out of and in the course of his employment with the (state).”

The arbitrator also concluded Mitchell took “substantial and unjustifiable risk resulting in a gross deviation in the standard of care of his duties as an Illinois State Trooper,” noting that moments before the high-speed wreck Mitchell wrote e-mails on his in-car computer and took a personal phone call.

Joint Responsibility for Workers’ Comp

A Massachusetts appeals court ruled that two employers can be held jointly responsible for workers’ compensation benefits for an injured worker whom they both classified as an independent contractor.

Leo Whitman, a construction worker, worked for two businessmen, Stephen Sarcia and John Citrano, who were engaged in the purchase, rehabilitation, and resale of distressed residential properties. The two introduced Whitman to PPM, a similar company, for additional work.

Whitman worked full-time for Sarcia, Citrano and PPM for three years.

On Dec. 20, 2006, while working on a project for both Sarcia and PPM, a scaffold collapsed, causing Whitman to fall about 16 feet. He suffered serious fractures in his left leg and was rendered partially disabled.

Whitman brought his claim for benefits as an employee of Sarcia and/or PPM. Neither maintained statutory workers’ compensation coverage for him since they both characterized him as an independent contractor.

The administrative judge concluded Whitman was a covered employee of both firms. In judging whether Whitman was an independent contractor or an employee, the judge calculated that seven criteria favored independent contractor status and five favored an employment relationship. He assigned greater weight to factors supporting employee status, especially the duration, continuity, near exclusivity of the working relationship, the absence of any contract and the resulting exposure of Whitman to at-will termination, and the payments to him as an individual.

The employers disputed the finding, arguing that there was no evidence PPM and Sarcia operated as a single employer with common management, ownership and financial controls.

The appeals court said state law does not require that joint employers must be integrated or single by ownership, management, and finances. “Workers’ compensation law in Massachusetts allows separate entities to constitute joint employers,” the court said.

The court noted PPM and Sarcia controlled the assignment of Whitman’s work and were receiving the benefit of it at the time and place of his injury. Because Whitman worked jointly without coverage for two employers, both employers “must bear the burden or detriment of non-coverage.”

Illegal Residents’ Eligibility

Florida employers may be under more pressure to document the status of their workers after a panel of state judges ruled that illegal residents who are injured on the job are eligible for workers’ compensation benefits.

In the case of HDV Construction Systems Inc. v. Luis Aragon, the Florida First District Court of Appeals ruled that an employee was eligible for workers’ compensation benefits, despite the fact that he was an undocumented worker.

In 2007, Aragon fell 30 feet off a roof causing serious injuries to his foot and arm. The employer’s insurer paid his medical bills, and a workers’ compensation judge awarded him permanent and total wage benefits, despite his illegal status.

The insurer asserted Aragon should not be eligible for wage benefits based on his illegal status and the fact he could find other less demanding work.

The judge found that the combination of Aragon’s physical injuries, illegal status, and inability to communicate fluently in English, effectively rendered him unemployable. As a result, he awarded Aragon wage benefits. The employer and insurer then appealed the case.

The First District Court ruled the workers’ compensation judge was correct in awarding Aragon wage benefits, saying it was the expressed legislative intent of the state’s workers’ compensation law that even illegal and unlawfully employed workers should be eligible for benefits.

“With the lure of cheap labor, we’ve created a black market of humans,” said state Rep. Ritch Workman, R-Melbourne, adding that employers, not insurance companies, should be on the hook for paying benefits. “I don’t care if that puts the employer out of business,” he said.

Fraud Runs Rampant

While states addressed workplace injury and fatality statistics and implemented new laws, fraud remained rampant in the workers’ compensation system.

Emily Kathleen Everett, also known as Emily Hegner, surrendered as a result of a warrant based on felony charges of workers’ compensation fraud, according to the California Insurance Commissioner’s office.

In July 2007, Everett was injured while performing her regular work duties as a health worker for Laguna Hospital. She allegedly slipped and fell on a puddle of water and subsequently complained of right wrist, left knee, and hip area pain and was restricted from returning to work.

While receiving total temporary disability benefits, Everett claimed she was in constant pain, experienced severe back spasms, and utilized a wrist brace and cane.

Subsequent surveillance revealed Everett had participated in a seven mile race on rugged a course that included an 1,800 foot climb, stairs, sand and rolling terrain for about 1.5 miles, and descending downhill to the finish line for about 2.5 miles.

She denied participating in any sports and made material misrepresentations to support the severity and extent of her physical disability. Everett had also requested a handicap placard from her treating physician, according to officials.

As a result of Everett’s alleged misrepresentations, she received $9,529 in total temporary disability benefits and $50,267 in paid medical specials.

Another example of rampant fraud in the workers’ compensation section can be found in the story of two Aurora, Colo., residents that were indicted, suspected of stealing $140,000 worth of workers’ compensation funds from Pinnacol Assurance.

Martin Lobatos first collected workers’ compensation following a September 2008 fall off a ladder while working as a roofer. Lobatos returned to work in October 2008, but still complained of dizziness and vertigo. According to the indictment, Lobatos’ doctors said he fully recovered from these symptoms in April 2009. However, following termination from his job in April and subsequent to him accepting a $20,000 settlement from Pinnacol Assurance in September 2009, Lobatos started to complain of new symptoms, including dizziness, memory loss, difficulty recognizing his own children and other physical problems.

Although Lobatos reportedly became fully catatonic by March 2010, surveillance video captured him driving and shopping.

Lobatos’ wife reportedly claimed $4,000 a month from Pinnacol to care for her husband between April 2010 and May 2011.

Each could face a fine of up to $750,000 and up to 12 years in prison if convicted.

Young Ha, Michael Adams and writers of the Associated Press, including Ben Neary, Bob Moen, contributed to this article.