Monthly Archives: May 2011

Are fraud and misrepresentation claims the best way to enforce doctor choice for injured workers?

Posted on by

A case out of Texas may provide injured workers to a way to enforce their state’s doctor choice laws.  In Warneke v. Nabors Drilling USA, a Texas appellate court held that a workers’ fraud and misrepresentation case against his employer for lying about having workers compensation coverage was not barred by the exclusive remedy of the workers compensation statute because the fraud was separate from the work injury.

A workers compensation doctor choice fraud and misrepresentation claim would be difficult to prosecute, but as a fellow trial lawyer told me at a recent AAJ membership and PAC drive, if things were easy people wouldn’t need lawyers.

In Warneke, the employer lied when it told their injured employee that they did not have workers compensation insurance. The court said the fraud caused the plaintiff to incur unpaid medical bills as well as emotional damages from economic distress. Continue reading

Tyson not liable for “donning and doffing” pay at Lexington, NE plant

Posted on by

A Nebraska jury decided yesterday that Tyson did not wrongfully withhold pay from its workers for time putting on and taking off safety gear at its Lexington, NE plant. The suit against Tyson’s Lexington, NE plant is one of many against Tyson and the meatpacking industry in general for pay for time putting on and taking off gear.  There is currently a suit involving Tyson’s Madison, NE plant pending trial.

Nebraska passes positive procedural workers compensation reforms

Posted on by

Nebraska has enacted key procedural reforms to its workers compensation statute that will benefit injured workers. Nebraska bucked a nationwide assault on the rights of injured workers. Among the positive reforms passed by Nebraska are:

The new law will also allow trials by video conference if both parties agree.

A. Elimination of the three-judge review panel: Appeals from the trial court level in the Nebraska Workers’ Compensation court are heard by a panel of three other workers’ comp court judges before they are heard in the Court of Appeals. Continue reading

Is “icing and heating” the new “donning and doffing”?

Posted on by

Today I received a call from a union official at a local packing plant asking me if the company could force injured employees to apply ice and heat to their injuries during break.

I answered it depends on whether the company or the employee receives the predominant benefit of the icing. The predominant benefit analysis is the framework for deciding “donning and doffing cases.” In donning and doffing cases, the issue is whether taking off and putting on safety equipment before and after a shift as well as during meal and break times should be paid. I think the same analysis could work for “icing and heating.” One argument for icing and heating time not being compensable is that the pain relief predominately benefits the employee. However, employers argued in the donning and doffing cases that wearing safety gear benefits employees, but courts have still found the predominate benefit question to be one answerable by a jury (subscription required).

The United States Supreme Court’s  recent decision in Schindler Eleavator Corp. v. United States ex rel Kirk is a terrible decision for taxpayers and employees.

Supreme Court Justices 2011

Supreme Court Justices

A majority of Justices comprising Justices Samual Alito, Justice Anthony Kennedy, Chief Justice John Roberts, Justice Antonin Scalia and Justice Clarence Thomas ruled that employees could not solely rely on information obtained in Freedom of Information Act (FOIA) requests as a basis for whistleblower claims under the False Claims Act.

The whistleblower provision of the False Claims Act (FCA) allows private citizens with evidence of fraud against federal programs or contracts to sue on behalf of the government and collect a percentage of what the government recovers. Continue reading

Ben Nelson was wrong on Goodwin Liu

Posted on by

Nebraska Senator Ben Nelson was the sole Democrat to side with the GOP in a successful effort to prevent a vote on the nomination of Goodwin Liu to Ninth Circuit Court of Appeals.

Nelson’s vote against against cloture on Liu is even more outrageous than his vote against confirming Elena Kagan.

Liu’s nomination was supported by the National Employment Lawyers Association, a group representing plaintiff’s side-employment attorneys. In an e-mail to members, NELA stated it supported Liu “based on his record of commitment to and respect for justice and equality in the workplace.”

As pointed out by Sam Stein of the Huffington Post, Nelson voted for cloture on many appeals court nominations made by President George W. Bush. In 2005 Nelson wrote that “the president’s nominees, especially to the Supreme Court, deserve an up-or-down vote” in regards to his vote on Justice Samuel Alito the United States Supreme Court. Apprarently Nelson believes President Obama deserves less deference that President Bush. Nelson’s vote is even more infuriating considering the impeccable credentials possessed by Professor Liu who was a Rhodes Scholar and a clerk for Justice Ruth Bader Ginsburg.

Nelson’s vote against against cloture on Liu is even more outrageous than his vote against confirming Elena Kagan. As a longtime participant and observer of politics in Nebraska, I think such efforts to mollify conservatives are stupid and futile. Nelson’s vote on Liu will do nothing to calm conservative animosity while it will just dampen further the lack of enthusiasm among progressives in Nebraska for Ben Nelson. While progressives are a minority in Nebraska, their support is the lifeblood of any successful Democratic campaign in this state.

Tentative deal reached with business interests on CIR reform

Posted on by

Nebraska State Senator Steve Lathrop announced yesterday business interests had agreed to a tentative compromise on CIR reform. While details of the legislation are uncertain, Lathrop is confident that Governor Dave Henieman will support the bill that changes how public sector unions assert their collective bargaining rights.

While the exact terms of the deal are uncertain, it is my view that this legislation will likely represent the least worse option for public sector employees. If this deal is passed into law, Senator Lathrop should be commended for his efforts in trying to fairly balance the interests of business, governments and public employees.

Physician choice crucial to work comp claimants

Posted on by

I had this scenario arise at a deposition this morning:

My client is suffering from bi-lateral (both hands) carpal tunnel. So far her claim has been paid, but now she needs surgery. However she doesn’t want to have surgery because she has heard the surgeon has had bad results with others and she feels the doctor is too deferential to her employer — a major employer in a smallish community.  Her current surgeon was referred to her by her family doctor.

Employers and insurers know doctor choice is important, which is why they often try to steer their injured workers towards doctor’s known to be friendly towards employers/insurers.

So is my client forced to chose between not treating her wrist injuries or being treated by a doctor she doesn’t trust? Continue reading