Compassionate Help for Injured Workers

If you've been injured on the job, you know how it feels to be second-guessed. You're wondering if you'll be treated fairly or not. My mission is to make sure you know your rights and responsibilities and that you obtain all the benefits the law allows. Call me at 1-888-694-0174 or 334-702-0000.

Thursday, August 9, 2012

Insurance Myth #9: “Insurance Companies Are People Too.”

There is a quaint notion that insurance companies make sound decisions based on personal interactions with policyholders. But, big insurance companies have become highly automated, able to rely on digital profiling to underwrite and set rates, proprietary databases to compile customer information, and black box logarithms to underpay claims. Neighborhood agents, trained appraisers, and experienced claims adjusters are seeing their influence wane. Indeed, without proper oversight, we could be entering a Brave New World where machines compile, crunch, and calculate complex datasets to dramatically limit human influence on key underwriting, rating, and claims handling decisions.
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We value our privacy, but it’s growing harder and harder to protect ourselves as our information is sucked up, stored, and sold. In the field of insurance, carriers may move beyond claims histories – and even the controversial use of credit information – to summarily deem you a risk on the basis of your Facebook feed or penalize you for asking smart questions about your coverage. Technology makes this a rapidly changing space, and our public policy must stay ahead of the curve to ensure we are secure from unwanted intrusions and unfounded judgments that have a devastating financial impact on our future.
An entire industry has sprung up around collecting, analyzing, and selling personal information. One of the largest data aggregators, a company by the name of Acxiom, possesses data on half a billion people from around the world, including a whopping 96% of all Americans, with an average of 1,500 pieces of data on each person. Through a process known as data mining, companies like Axciom quietly amass details on a wide range of personal consumer information – everything from your Social Security number to your medications, finances, and web surfing habits. You are then profiled and segmented into one of 70 “clusters” within 21 “life stage groups.” Where you are pigeonholed on this limited spectrum may dictate if products and services are offered to you, and at what price. Weblining is the new redlining.
Insurance companies are figuring out how to get in on the act. Some insurers are looking at how to pry into your personal consumer data to guess about your risk level. The magazines you read, how much television you watch, and what type of purchases you make could determine whether a policy is offered to you, and how much you would have to pay for coverage. Your posts on Twitter, Facebook, and other social networking sites can be compiled into a social networking score by insurers, which could impact your premiums and coverage options. So, failing to keep up with Facebook’s ever-changing privacy settings could mean you pay more and get less. Early advice is to make a show of checking in on sites like Foursquare when you go the gym so that insurers see you are engaging in healthy behavior. The Big Brother tactics involved in data mining are a direct threat to our individual liberty.
If that isn’t bad enough, policyholders have to fear asking basic questions about their coverage lest their company overreact and count their inquiry as an actual claim. Insurers maintain comprehensive databases on claims – with records that reach back seven years. Our insurance marketplace is incredibly complex, and consumers should try to educate themselves about their coverage options. However, if you, as an informed consumer, call your company while shopping the market to ask if your policy would cover a particular peril, they may jump to the conclusion that you have suffered a loss and wrongly record it. As things stand today, anything you say to your insurance company can – and will – be used against you.
Finally, insurance companies now utilize proprietary software, like the program known as Colossus, to determine how much – or even whether – to pay on a claim. No longer are human beings making informed, big picture, common sense, final decisions about the damage that resulted from a car wreck. Experienced claims adjusters are overruled by computers. Data is plugged into a computer program that spits out a number on the other end. Even worse, the software can be manipulated or “tuned” by the insurance company to broadly underpay valid claims. Low balling victims is now as easy as pushing a button.
Gaping holes remain in our laws, and we must provide consumers with basic protections if our insurance market is to work for anyone but the carriers.
The Constitution protects us from spying by Big Government, but current federal laws are woefully inadequate to protect citizens from spying by Big Business. That means it is up to the states to guard their citizens’ personal information. The Texas Legislature must lead the charge to protect our liberty. 

Wednesday, August 1, 2012

Snakebitten at Work!

The small southeastern town of Opp, Alabama is known for its annual Rattlesnake Rodeo.  Recently a worker in southwest Alabama was seriously injured after being bitten by a rattlesnake.  Obviously rattlesnakes are dangerous.  Does it benefit your employer if you try to remove a snake from your workplace?  It depends.

Some will recall the words of Scripture, "The serpent was the shrewdest of all the wild animals the LORD God had made."  (Genesis 3:1)  A recent decision in an appeal of an Alabama workers' compensation claim involved a man who made a claim for benefits after suffering a serious injury while trying to catch a snake.  

The case is styled Mercy Logging LLC v. Odom, Alabama Court of Civil Appeals Case No. 2101061 (decided July 27, 2012)

Here is a brief synopsis of the case.  Johnnie Odom was a logger for more than 20 years. On September 24, 2009, he was working for Mercy Logging LLC and at the end of the day’s work, he and two co-workers were riding with their foreman back to where each of them had parked their vehicles at a gas station.  As they drove, the foreman noticed a diamondback rattlesnake in the road and he swerved the truck to try to run over the snake. One of the workers suggested they try to catch the snake rather than kill it. The foreman stopped the truck and one of the workers tried to catch the snake.  That worker apparently didn’t know how to catch a snake but Odom had caught as many as 100 snakes before so he took over. In the process, the large snake, measuring six fee three inches bit Odom on both hands.  Suffering serious injuries, Odom was in intensive care for 35 days and he now suffers disabling pain in his neck and back.  Odom sought workers’ compensation benefits and the court found him permanently and totally disabled.  The employer appealed.  On appeal, the Court of Civil Appeals reversed.  The Court’s rationale was that an injury is compensable when caused by an accident arising out of and in the course of employment.  Courts have held that an injury arises in the course of employment when it occurs within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it.  Here, the employer provided transportation to its employees so Odom’s accident occurred within the period of his employment. The Court wrote that the more difficult question is whether Odom was “reasonably fulfilling the duties of his employment or engaged in doing something incident to it”  when he was bit trying to catch the snake.  The fact that Odom’s foreman stopped the truck so the workers could catch the snake created an inference that the employer impliedly consented to the snake-catching.  However, the Court wrote that the implied-consent rationale is limited by the requirement that he employer must receives some direct or indirect economic benefit from the activity before it becomes part of the employment.  Odom suggested he was making the job site safer by catching and removing the snake.  However, the Court noted that even assuming the job site was benefited getting rid of one dangerous snake, the potential benefit was outweighed by the potential detriment to the employer that resulted from losing the services of a valued employee who might have been seriously injured while trying to catch the snake.  The Court also considered whether the injury arose out of his employment and noted the injury did not occur while Odom was in the woods or engaged in logging. “The snake on the roadway posed no risk—occupational or otherwise—to Odom so long as he remained in the vehicle in which he was riding. . . .”  

Tuesday, July 24, 2012

Supreme Court reverses Court of Civil Appeals and holds that Court of Civil Appeals improperly reweighed evidence in workers’ compensation case.

Supreme Court — Civil
▼▼ Supreme Court reverses Court of Civil Appeals and holds that Court of Civil Appeals improperly reweighed evidence in workers’ compensation case.
APPEAL & ERROR: Appellate Review. WORKERS’ COMPENSATION: Causation. Windell Caldwell sued West Fraser, Inc., seeking workers’ compensation benefits for a back injury. At a hearing on that claim, Caldwell testi- fied that he was working on December 17, 2009, and he was assigned the task of replacing “knives” in a mulching ma- chine. In order to complete the task, Caldwell had to lift two boxes weighing 50-100 pounds and move a screen weighing 80 pounds. Caldwell claimed that he felt three “pinches” in his back as he attempted to complete the task. Caldwell contacted his wife, Rhonda, and she took him to an urgent care facility. The records from that visit contain a notation indicating that “no injury” was reported. On December 19, 2009, Caldwell went to the emergency room because of his back pain. Caldwell and Rhonda testified that they told the medical staff that Caldwell’s back pain was the re- sult of a work-related injury. The medical records indicate that Caldwell “denie[d] injury.” Caldwell went back to the urgent care facility on December 21, 2009. The medical re- cords from that date referenced an “injury [on] 12/17.” On December 22, 2009, Caldwell informed West Fraser, via a facsimile transmission from his counsel, that he had injured his back at work on December 17, 2009. Dr. David Scott, an orthopaedic surgeon who treated Caldwell, testified that his injuries were consistent with the lifting accident that Caldwell had described but that the injury could also have occurred in a number of ways. Caldwell’s supervisor testi- fied that when Caldwell left work on December 17, 2009, he said that he was experiencing back pain but that he did not say that the injury was work related. His coworker testi- fied that he was working near Caldwell on the date of the alleged injury and that he did not hear Caldwell say that he was injured. Caldwell had complained of back pain in the past. The trial court held that Caldwell had suffered a com- pensable injury and awarded him benefits accordingly. West Fraser appealed and the Court of Civil Appeals reversed, holding that although Caldwell presented “some” evidence indicating that he injured his back at work, “that evidence does not amount to substantial evidence.” West Fraser, Inc. v. Caldwell, [Ms. 2100696, January 13, 2012] ___ So.3d ___ (Ala. 2012)[21 ALW 4-3]. The Supreme Court grant- ed certiorari review. Reversed. The decision of the Court of Civil Appeals conflicts with the decision in Ex parte McInish, 47 So.3d 767 (Ala. 2008)[17 ALW 37-9], which states that an appellate court cannot reweigh the evidence presented at trial. In this case, the Court of Civil Appeals relied upon cases that are factually distinguishable from the case at bar. “We conclude from our review of the totality of the evidence, which admittedly reveals some inconsis- tencies in the evidence, that the trial court’s determination that Caldwell’s injury is compensable is supported by sub- stantial evidence.” The judgment of the Court of Civil Ap- peals is due to be reversed. Ex parte Caldwell (West Fraser, Inc. v. Caldwell), 21 ALW 30-1 (1110513), 7/20/12, Lee
Cty., Stuart; Malone, Woodall, Bolin, Parker, Shaw, Main, and Wise concur; Murdock concurs in the result, 17 pages. [ATTY: Pet: Tracy Cary, Dothan; Resp: James Sanders, Vestavia]

A Win For the Good Guys!

 Appellate Courts "Grappling" with Conflicting High Court Decisions

By Heather Scofield, Reporter (WorkCompCentral.Com)

The Alabama Supreme Court on Friday reinstated a trial court decision in favor of a worker who claimed he injured his back while at work, but the long, circuitous route that was required to bring resolution to that case will likely stand in front of other claimants until the high court clarifies conflicting decisions that it made in the past, attorneys say.
Stephen Christie, a partner with the Miller, Christie & Kinney law firm in Vestavia Hills, Ala., and member of the Workers' Compensation Defense Institute, said the high court's reversal of the Court of Appeals in the case is a symptom of problems caused by conflicting rulings the high court has made in the past.
"This is a conflict we're seeing over and over again," Christie said. "It’s an issue that really does need some further clarification and it's going to have to come from the Supreme Court."
In Ex Parte Windell Caldwell Sr., No. 1110513, the claimant asked the Supreme Court to overturn an appellate decision that reversed a trial court decision to award benefits in a case where there was disagreement about whether Caldwell's injury occurred at work.
One of the Supreme Court justices presiding over the case, Judge Glenn Murdock, stated that the conflict stems from the high court's own decisions in 2003 and 2008.
Tracy Cary, who is a partner with the Morris, Cary, Andrews, Talmadge & Driggers law firm in Dothan, represented Caldwell. He said his client had to wait two years for his case to be decided.
"We're very relieved (about the Supreme Court ruling)," Cary said. "But it’s kind of frustrating for an injured worker who’s left in limbo while things run their course.”
Central to the Caldwell case and others like it are the state Supreme Court's decisions in Ex Parte Southern Energy Homes, 2003, and Ex Parte McInish, 2008.
In McInish, the Supreme Court explained that the responsibility for making credibility determinations and weighing evidence in a case fall to the trial court. The court said an appellate court cannot reverse a trial court decision based on a particular finding of fact if the finding is supported by substantial evidence presented in the case in such a way that "fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved."
The Southern Energy Homes case, however, conflicts somewhat with principles embodied in state law and the McInish case, the July 20 opinion said. That case used a "totality-of-the-evidence approach" in its findings, the opinion said.
"The reason we are here, and the real reason the Court of Civil Appeals was so divided in its approach to this case, is in fact the holding of this court in Southern Energy Homes," Murdock wrote in the Caldwell opinion.
In the Caldwell case, Windell Caldwell applied for workers' compensation benefits from his longtime employer, West Fraser Inc., after he said he hurt his back while working on a mulching machine.
But in the trial court hearing on the matter, testimony conflicted as to whether Caldwell properly reported the injury to his supervisors and to the medical providers who treated him during the first few days following the accident.
Caldwell testified he did inform his supervisors and the medical providers of the accident immediately. But supervisors at the company said Caldwell reported only that he had back pain and did not say the pain was connected to an injury or accident at work. And medical records for Caldwell's first few efforts to get his injury treated also indicated he did not report that he had been injured at work.
The medical records began to reflect a report of a workplace injury only after Caldwell secured an attorney in the case four days after he hurt his back, according to court documents.
The trial court awarded Caldwell benefits in the case, citing his long and stable history with the company and the plausibility that the first few medical reports contained erroneous exclusion of a workplace injury being reported. The medical providers were not called as witnesses in the case, court documents said, and the trial court was left without benefit of hearing their version of events.
But the Court of Appeals later proffered up a split decision on the case that reversed and remanded the trial court's decision, arguing that Caldwell's claims were not supported by "substantial evidence," as state law requires, because he lacked documentation to prove he reported his injury as work-related to the company and medical providers in the case immediately after the alleged accident.
The majority in that decision, West Fraser Inc. v. Caldwell, concluded the trial court had given Caldwell the "benefit of the doubt" based on his work history with the company.
Judge Tommy Bryan, one of two dissenting judges in the appeals court case, said he would have awarded benefits because medical personnel may have failed to properly transcribe Caldwell's injury report. The lower court should have deference in deciding Caldwell's credibility on that matter, Bryan said.
The state's Supreme Court unanimously agreed with Bryan in its July 20 ruling.
Despite "some inconsistencies in the evidence," the court found that Caldwell's injury was compensable and supported by substantial evidence provided during the trial court proceedings after the accident. The situation and Caldwell's claims were not "so implausible in substance that a fair-minded person exercising impartial judgment could not reasonably infer from it causation," the court wrote in the opinion. Given that the trial court's decision did stem from substantial evidence presented in the case, the decision should stand, and the appellate court erred in overturning it, the Supreme Court opinion said.
The appellate court decision in Caldwell's case conflicted with the McInish case, the justices said. But the conflict was understandable, "unavoidable" even, given the Supreme Court decision in Southern Energy Homes, the July 20 opinion said.
Murdock borrowed terminology in his written opinion on the Caldwell case from one of the three dissenting opinions published in the Southern Energy Homes case to reflect his opinion.
The Southern Energy Homes case overruled "so much bedrock workers' compensation precedent," Murdock wrote.
"Unless and until this departure from the 'bedrock' principles reviewed at the outset of this writing is revisited and removed from our jurisprudence, it is inevitable that we will continue to see cases in which the appellate courts are asked to decide how much is enough -- how much evidence in favor of the employer is enough to outweigh the evidence in favor of the employee," Murdock wrote. "The struggle to answer this question has always been, and should again be, consigned solely to the trial courts."
Christie agreed and called the situation a "Catch 22" for the appellate courts. 
 "It’s a very difficult balance for them to strike," Christie  
said. "How do you answer that question (of substantial evidence) without reweighing the evidence?"
As more cases like the Caldwell case move their way to the Supreme Court, Christie speculated there might finally be a resolution.
"Someone will ask the Supreme Court to consider addressing the issue," Christie said.
Cary said he would welcome a fix. Everybody in workers' compensation benefits from more clarity in law, he said.
"If they’re able to make (this issue) clearer, I’m sure everyone would welcome that," Cary said.

Wednesday, June 6, 2012

Workers Compensation Is Quietly Under Attack in America

Guest Blog
by Steve Cooper*

As the economy crawls out of the dumps and more people return to the job site, a strong workers compensation environment is as important as ever. Unfortunately, workers comp appears to be under quiet attack in many states.

In Virginia, a law aimed at stopping Virginia dock workers from “double-dipping” may actually leave longshoremen more vulnerable than workers doing much safer work. HB153 is making its way through assembly and has the International Longshoremen’s Association (ILA) concerned:

“Why in the world should a Virginia harbor worker be denied benefits that are provided for other Virginia citizens who work in a business across the street from the harbor?” said Deborah C. Waters, general counsel for the longshoremen’s union.

Arthur W. Moye Jr., executive vice president of the Virginia Maritime Association, which represents more than 400 member organizations employing more than 70,000 workers in port-related jobs, said the primary reason for seeking the legislation was duplication.

Harbor workers are the only employees in the state who can seek workers’ compensation coverage under both state and federal programs, he said. Most workers in Virginia are eligible for coverage only under the state program.

“We feel the federal act covers the needs of an injured worker and covers it in a far superior way than the Virginia state act does,” Moye said.

There are differing opinions about this bill, however. The sticking point is the limitation on what the federal act covers. Worker representatives feel it is hardly sufficient, especially for a worker faced with a serious injury such as a lost limb or a family incurring a costly funeral. It is difficult to classify something as “double-dipping” when the first “dip” doesn’t do enough. Moreover, “double-dipping” is prohibited, making the new law appear obsolete on arrival:

Today, injured maritime workers in Virginia, like those in some other states, are covered under the state’s workers’ compensation program as well as two federal programs: the Longshore and Harbor Workers’ Compensation Act and the Merchant Marine Act, or Jones Act, which applies only to members of crews of vessels under way.

Under the current arrangement, an injured shipyard worker can file claims under the state and federal longshore-act program, though the laws prohibit “double-dipping.”

“There’s a lot of things that the state act does that the longshore act doesn’t cover,” said Stephen Harper, a Richmond attorney and chairman of the workers’ comp section of the Virginia Trial Lawyers Association.

In the event of a fatal injury, for example, the state program offers the family of the victim a $10,000 funeral benefit plus $1,000 in transportation costs, Harper said.

Under the federal program, the maximum funeral benefit is $3,000.

Under the state and federal plans, Harper said, if a worker suffers a permanent injury, such as a crushed ankle, that prevents him from returning to his old job, he is eligible for compensation for a certain period of time, based on a doctor’s evaluation of the degree of impairment.

In most cases, once the payment is made under the federal programs, the insurer’s obligation ends. Through the state workers’ comp program, however, benefits can last as long as 500 weeks, or 9-1/2 years.

“They’re putting the longshore people in a much, much worse situation than the guy working down the street at Walmart,” Harper said. “The same injury, the guy down at Walmart may be able to get lost wages because of that ankle fusion for 9-1/2 years, potentially, but under the longshore act it could be a lot less.”

In Kansas, House Bill 2531 is poised to diminish workers comp as well. The law changes how those appointed to hear workers comp cases are selected. It is alleged that the new selection process skews anti-worker:

Such judges are now chosen by a panel consisting of one member picked by the Kansas Chamber of Commerce and one picked by the KansasAFL-CIO. The bill would use a seven-member panel composed of the state labor secretary, a person from an employee organization chosen by the labor secretary, and representatives of the Kansas Chamber of Commerce, National Federation of Independent Businesses, Kansas AFL-CIO, Kansas State Council of the Society of Human Resource Management and Kansas Self-Insurers Association. More people at the table may be a good idea, but the proposed lineup is hardly rich with employee representation.

In Pennsylvania, employers successfully won a 5.7% decrease in workers comp funding this week:

The Pennsylvania Insurance Department (PID) recently approved a 5.7 percent overall decrease in workers’ compensation costs. The rate cuts will result in $160 million in savings for Pennsylvania employers, the department estimates.

“At a time when many are feeling a financial pinch and doing more with less, it is a very hopeful sign that the business community may now be able to pay less in workers’ compensation insurance premiums,” said Insurance Commissioner Mike Consedine.

The article makes no mention of the impact this could have on workers, but does suggest that Pennsylvania employers are given an even larger discount when they display superior safety practices:

Businesses enrolled in the Certified Workplace Safety Committee program of Pennsylvania’s Department of Labor and Industry (DOLI) receive an additional 5 percent discount. Currently 9,652 businesses have certified safety committees. Participating businesses have realized insurance premium reductions totaling $432.8 million since the program began, DOLI reports. “Pennsylvania employers are able to benefit from the outstanding job they are doing to provide safer workplaces,” said Labor Secretary Julia Hearthway.

In Wyoming, nearly $1,000,000 in workers compensation has gone unpaid, according to the WyoFile:

Did you know; of Wyoming’s 18,228 employers 1,212 of them are delinquent on their Wyoming Workers’ Compensation premiums — to the tune of $943,498.73, according to state officials? That’s 6.6 percent of Wyoming’s employers who pay into Wyoming Workers’ Compensation — delinquent. $1 million. Yet, those delinquent employers still enjoy legal immunity for their own proven negligence in a worker injury/death — because that’s part of the compromise of workers’ compensation?

Employees in Wyoming do not enjoy the same leniency when it comes to delinquency. If an injured worker files 1 day late, no case, no benefits. No matter.

To make matters worse, workers compensation legislation can often be misleading. In Missouri, workers comp was recently “expanded” to include many job-related diseases. What this means is that the state is now on the hook, rather than businesses, for harm done to employees by employers. This appears to be a win for workers on the surface, but is actually a Republican-driven move aimed at making Missouri more “business friendly”:

In a move that Republicans contend will make Missouri more attractive to businesses, the state Senate has approved legislation to expand the workers’ compensation program.

The measure, SB572, approved with a largely party-line 28-6 vote, would cover occupational diseases under the workers’ compensation program — freeing businesses from potentially costly litigation.

But this bill tucked in some very questionable caveats, including lumping together disparate diseases and the exclusion of immigrants and prisoners:

St. Louis County Democratic Sen. Tim Green drafted — but did not offer — an amendment that would have excluded occupational diseases from the compensation program. He said curable injuries like carpal tunnel syndrome aren’t similar to lethal diseases such as mesothelioma, a type of cancer that can be caused by exposure to asbestos.

“I don’t think they should be treated the same,” Green said. “Putting it back in the workers compensation system isn’t right and that’s what this bill did.”

The legislation would also prevent illegal immigrants or people who are in prison from collecting workers’ compensation benefits.

The bill is expected to breeze through the Missouri House.

A surprising bright spot is South Carolina which is attempting to make up the decrease in workers comp responsibility that business owners have witnessed since 2009:

South Carolina employers could see their workers’ compensation premiums increase next year if state regulators go along with a proposed 7.3 percent increase in the state’s loss cost rates.

The National Council on Compensation Insurance filed for the proposed increase earlier this month, making it the first such proposed increase since 2008. Most recently, the state has seen three loss cost decreases totaling 13.4 percent.

Based on 2009 and 2008 policy year data, the rate filing calls for a 5.3 percent increase in experience, a 2.2 percent increase in trend, a 0.1 percent increase in benefits, and a slight decrease of 0.4 percent in loss adjustment expenses.

Even if the current proposed rate change is approved as filed by South Carolina Acting Insurance Commissioner Gwendolyn Fuller McGriff, employers will still have seen a cumulative decrease of 7.1 percent since 2009.

On the national level, reports are emerging of a disproportionate number of workers in need of disability compensation, especially for mental illness. Typically anti-worker source The New York Post suggests that workers are grasping at safety net straws due to the country’s economic decline:

“It could be because their health really is getting worse from the stress of being out of work,” Matthew Rutledge, a research economist at Boston College, told the paper. “Or it could just be desperation — people trying to make ends meet when other safety nets just aren’t there.”

The paper said that, according to recent research by JPMorgan Chase, the government was mailing out disability checks to about 10.5 million people, including 2 million to spouses and children of disabled workers, at a cost of about $200 billion annually.

The stagnant economy has grown those ranks. About 5.3 percent of the population between the ages of 25 and 64 are collecting federal disability payments, a jump of 4.5 percent since the recession hit in 2009.

There is no question these numbers represent a drastic leap, but how our system treats the injured and disabled is not to be taken lightly. JPMorgan and The New York Post have been champions of the austerity that has been the enemy of many a necessary program from a worker standpoint. Workers compensation can ill-afford to be next on the chopping block.

Steve Cooper (E.m. Ployd) lives in Washington, DC, and is the editor ofWe Party Patriots. He educates union members on the benefits of social media, offering instruction on engaging on Facebook and Twitter. When not ruining his posture and finger muscles through endless computer use, Cooper is an avid chef and musician. The We Party Patriots has an active on Facebook page that is "A bold, accessible online approach to achieving the Labor Movement's goals and defeating the powers that Tea."

AIG Exits Workers Compensation As Comp Medical Issues Grow

AIG has written, in what maybe, the first of many obituaries for the nation's patchwork of workers' compensation programs. The third largest excess workers' compensation insurance carrier, has announced that it is leaving the market because of instability in medical costs and the advent of national health care.

Friday, March 9, 2012

DC Court of Appeals Disbars Lawyer for ‘Egregious’ Murder-Case Misconduct While a Federal Prosecutor

From ABA Journal (
Updated: Former assistant U.S. attorney G. Paul Howes was disbarred today by the Washington, D.C., Court of Appeals.
It is the first time in at least 10 years that a lawyer anywhere in the country has been disbarred by judges over conduct as a federal prosecutor, USA Today reports.
Howes misused $42,000 in vouchers he was supposed to give to witnesses for expenses related to their testimony in court, instead providing them as payments to informants' relatives and girlfriends in high-profile murder and gang cases. Once this came to light, sentences were substantially reduced in at least nine cases, says a three-judge panel in the court's written opinion (PDF).
In addition to giving vouchers to individuals who weren't supposed to receive them, Howes "compounded this initial misconduct by failing to disclose the voucher payments to either the court or opposing counsel, pursuant to District of Columbia Rules of Professional Conduct Rule 3.8 (e), Brady v. Maryland, and Giglio v. United States, even though such payments were relevant to the jurors’ credibility determinations of key government witnesses’ testimony," the opinion continues. "Finally, respondent intentionally misrepresented to the court that such disclosures had been made."
The Board on Professional Responsibility recommended, by a 5-4 vote, that Howes be suspended rather than disbarred, and Howes, who sought a one-year suspension, pointed to his lack of prior discipline, lack of any financial gain, cooperation with bar authorities and what the court described as his "altruistic motivation."
However, calling Howes' misconduct "decidedly egregious" and saying that it was "significantly compounded by the protracted and extensive nature of the dishonesty involved," the court decided to disbar him.
"Respondent exhibited a consistent, aggressive disdain for statutes, rules and procedures as a prosecutor, which resulted in his use of the voucher system as a discretionary fund to be distributed at his will. Respondent’s steadfast determination to achieve convictions led him to circumvent federal laws and ethical rules, displaying 'a continuing and pervasive indifference to the obligations of honesty in the judicial system,' " the opinion states, quoting from an earlier case.
"The severity of this conduct is amplified when misconduct as subtle and undetectable as voucher distribution is actively concealed from both the courts and criminal defense counsel," the panel continues. "Additionally, failure to sanction respondent with our most extreme sanction would endorse respondent’s reasoning that honorable ends justify unlawful means, failing to deter others from adopting similar attitudes. Not only does this type of conduct impugn a prosecutor’s moral fitness to practice law, but prosecutorial actions such as these can place another’s liberty interests in the balance. The appropriate sanction should reflect this gravity."
USA Today page provides a link to a series of previously published articles in its "Misconduct at the Justice Department" investigation.
Additional coverage: "Disbar Ex-Federal Prosecutor for Alleged Ethics Issues in Criminal Cases, DC Appeals Court Is Urged"
Updated at 4 p.m. to link to and include further information from appellate opinion and link to USA Today page on prosecutorial misconduct coverage.

Friday, January 27, 2012


 What you should know about your IME.

Lawyer Who Failed Courthouse Breath Test When She Arrived for Client Hearing Now Faces Criminal Case

Lawyer Who Failed Courthouse Breath Test When She Arrived for Client Hearing Now Faces Criminal Case 

Posted Jan 24, 2012 3:08 PM CST in
By Martha Neil
A California lawyer has been criminally charged after allegedly appearing at court to represent clients at hearings in a drunken state.
Michelle Winspur is accusing of blowing twice the legal limit on Oct. 7, when she was given a breath-alcohol test as she entered Kings County Superior Court in Hanford, reports the Visalia Times-Delta.
She was tested because a court clerk said she sounded drunk when she called to say she was going to be late for trial.
Winspur, now 45, also failed a sobriety test she was given on Dec. 8 as she left court after a client hearing, according to the Times-Delta and the Hanford Sentinel.
She was criminally charged in Kings County both with appearing in court under the influence and with drunken driving because she was seen driving to court prior to the Oct. 7 breath test, Larry Crouch told the Times-Delta. He serves as chief trial deputy for the Kings County district attorney.
Already facing an attorney discipline case for allegedly being drunk during a 2010 trial in Monterrey County, Winspur had her law license suspended earlier this month.
A defense lawyer pleaded not guilty on her behalf to the criminal charges last week, but Winspur herself did not appear because she apparently is in rehab.