As I have written previously, in Nebraska, you have the right to choose your family doctor to treat you for your work injury. For purposes of the workers’ compensation court, that person becomes your “treating doctor.” However, sometimes an employer or insurance provider selects a non-treating doctor for an “independent medical examination” (IME). According to the workers’ group National Association of Injured & Disabled Workers (NAIDW), IMEs are used for three reasons:
- “to determine the cause, extent and medical treatment of a work-related or other injury where liability is at issue”
- “whether an individual has reached maximum benefit from treatment”
- “whether any permanent impairment remains after treatment”
When an IME is scheduled, this probably means your employer or the insurance company is trying to fight some aspect of your workers’ compensation benefits. An IME doctor frequently bases his or her findings on what is often a very brief visit with a patient. Sometimes they don’t even perform a physical examination before rendering their opinion. Rarely do they issue opinions that are favorable to an injured worker. For that reason, when an examination like this is scheduled, my policy is to Continue reading
Tom’s post on how to protect your rights is crucial for every worker to read before they get hurt at work. Know your rights, and beware these dirty tricks that employers use to keep you from getting your benefits.
Today’s post is by our colleague Tom Domer from Wisconsin.
Over the course of 35 years representing injured workers, I have heard some whoppers – Employers’ questionable tactics that make even my jaw drop.
With all the insurance company generated blather about “employee fraud”, incidences of employer fraudulent tactics abound.
Workers beware of the following:
- Recorded statements taken by worker’s compensation carrier adjuster while employee is under medication or in the hospital still suffering from the injury. Questions such as “It’s true you had (low back pain, arm pain, fill in the blank pain, etc.) before your work injury, correct? You’ve had lots more pain from (your motor vehicle accident, sports injury, etc.) than you’re experiencing from your work injury, correct?”
- Employer “channeling” a worker to its “Return to Work Clinic” (doctors on company payroll whose opinion is “like some athletic coaches, ‘rub some dirt on it and get back in the game’.”
- Telling employees to take sick leave rather than claim worker’s compensation.
- Telling employees to file medical bills under their group insurance, not worker’s comp.
- Nurse Case Manager who initially befriends the employee, but later makes every attempt with the worker’s doctor to prematurely return the worker to the job before a healing occurs. Continue reading
You cannot take for granted that your workplace is safe, or that your employer is even following its own policies. Farmers Union Cooperative Supply of Stanton, Nebraska, a grain elevator, was recently sentenced in the death of an employee, Donald Stodola. Stodola was working in a confined space without proper ventilation. The lack of oxygen in the space caused Stodola’s death. Farmers knew that it was violating both a U.S. Occupational Safety and Health Administration (OSHA) regulation and its own written safety manual. Farmers’ failure to comply with regulations and its own internal policies caused a completely preventable employee death.
Farmers was fined $86,000 by OSHA because it didn’t protect Stodola from an unsafe environment. In addition to the OSHA fine, the company pled guilty to violation of a criminal statute and was fined $100,000 and placed on probation for 2 years. But, according to the Norfolk Daily News, “The criminal statute violated by Farmers provides that a willful violation of an OSHA regulation, which causes the death of an employee, is a misdemeanor punishable by imprisonment up to six months, a fine of up to $500,000 or a combination of the two.”
We think that every preventable workplace death should be prevented, and a failure to do so is inexcusable.
We do not understand why the total fines issued by OSHA and the court equal ($186,000) less than 40% of the maximum criminal fine of $500,000. Farmers pled guilty to Continue reading
Today’s post is by our colleague Paul J. McAndrew of Iowa. While almost all of his advice applies to both Iowa and Nebraska, in Nebraska, unlike Iowa, you can choose your doctor. In Iowa you must see a “Company Doctor.” Regardless of what state you are from, you should not hesitate to consult with a lawyer if you were hurt at work and have questions or concerns.
Not seeing a doctor chosen by your employer could negatively affect the validity of your work injury compensation claim.
Injured workers call me all the time asking me what they need to do to make sure they protect their legal rights. If you are hurt on the job, whether it is due to an acute traumatic injury (like cutting yourself on a saw), cumulative-trauma injury (like carpal-tunnel syndrome) or some other job-related injury, there are several basic things you should do. If you do not do any of the things on the list below, you may lose your rights under Iowa’s workers’ compensation law.
Although there may be rare exceptions to this list, following it will leave you reasonably secure that your rights are protected:
- Report the injury. By “injury,” I mean almost any condition including but not limited to (a) an acute traumatic injury, (b) a cumulative-trauma injury, or (c) a disease or a hearing loss. You should report the injury to your supervisor or company nurse (for clarity we’ll just call these people your Supervisor from here on out), making clear your injury was caused by work. Under Iowa law, you need to make the report within 90 days of the date of your injury.
- Make sure your Supervisor prepares a company accident report. If your Supervisor won’t prepare the report, then you should write a letter stating the facts of your injury and give a copy of the letter to the Supervisor. Keep a record of when you gave the letter to your Supervior. If you can get him/her to sign a receipt for having received it, that’s even better.
- Get a copy of the accident report and keep it in a safe place. If you prepare a letter, keep a copy of it.
- If you are part of a collective bargaining unit you should (a) join the union if you are not already a member and (b) tell your steward that you were injured and that you reported your injury to your Supervisor.
- Keep notes of all significant contacts you have with anyone (including but not limited to supervisors, insurance company representatives and doctors) concerning your work injury.
- Under Iowa law you must and should get medical care through the doctor selected by your employer (we’ll call this person the Company Doctor). Don’t get frustrated if you are denied care. Keep demanding proper care through the Company Doctor. If you go to your own doctor, you can make it look like you believe your injury was not caused by work. Also, under Iowa law your employer may not be required to pay for care you get from a doctor you choose.
- Tell the Company Doctor clearly and in great detail how your work caused your injury. If you do not think that the Company Doctor is caring for you properly or has not taken careful notes on how your work caused your injury, then give the doctor a written statement of how your work caused you injury and keep a copy of that statement.
- Follow all medical directions. If you don’t, your employer may argue that you chose not to get proper care and purposely stayed sick so you did not have to go back to work.
- If the doctor recommends you not do certain things at work, get the doctor to write that down and get at least 2 copies, one for the Supervisor and one for you to carry at work.
- Make sure that the doctor sends all bills to your employer for payment.
- If your employer and/or insurance company denies your medical care or the Company Doctor does not provide effective care, you have a right to seek effective medical care. You do this by first demanding the employer and/or insurance company provide effective care to you. If you are denied, you then need to file an “Alternate Care Petition” seeking an order from the Iowa Workers’ Compensation Commissioner that you be provided the effective care. You can get a copy of the Petition at: http://www.iowaworkforce.org/wc/forms/14-0011altcarefillable.pdf. You should consult a lawyer if you are denied proper and effective medical care for a work injury.
- If you miss work because of a work injury, your employer may have a right to a 3-day “waiting period” before starting to pay you money benefits. If your employer does not start to pay you after 3 days have passed, you should demand payment. If you are denied payment of money benefits for time missed from work because of a work injury you should consult a lawyer. You have a right to be paid money benefits in a timely manner – which means on the same day each week. If that does not happen, you may have a right to a “penalty” benefit payment equaling up to 150% of the money benefits owed and not timely paid.
Image: Maggie Smith / FreeDigitalPhotos.net
If an injury or an accident would not have happened if you weren't already injured in the first place, then workers' comp should pay for it.
Many times an injured worker is taken off work and is further injured at home. Or someone may sustain another accident and injury while traveling to a medical appointment or picking up their medications. Does workers’ compensation coverage extend to these additional accidents and injuries?
In Nebraska, it does.
For example, Mr. Smidt slipped and fell on the ice at his home when he returned from physical therapy; Ms. Baker was involved in a motor-vehicle collision going to her doctor’s appointment. Mr. Johnson, who had a broken ankle, fell down his stairs because he lost his balance, so he sustained another fracture injury. These are common scenarios of a worker who gets injured at work and sustains further injuries or another accident as a result of the original work accident.
These events can be described as “quasi-course of employment” and focus on the activities and circumstances that an injured employee encounters following an injury, though they take place outside the time and space limits of a worker’s normal employment.
Even though these events would not be considered employment activities for usual purposes, they are nevertheless related to the employment in the sense that they are necessary and/or reasonable activities that would not have been undertaken if not for the original compensable accident and injury.
If you or a friend has something like this happen but the insurance carrier is not taking responsibility for the additional injury and medical care, contact an experienced attorney to investigate and file a claim. Protect yourself, your friends, and your family from paying for shouldering medical expenses for additional injuries that are compensable.
Image: Boaz Yiftach / FreeDigitalPhotos.net
If you are fired, your employer has the burden to show that you were fired for misconduct connected to your work. If they are alleging attendance or performance problems on your part, they should produce documents to prove your attendance or performance problems to you. If your employer fails to produce documents showing performance or attendance problems on your part and you dispute your employer’s allegations, you should be able to avoid a penalty on your unemployment benefits. Furthermore, if you are let go for health reasons out of your control such as an injury, you should be able to receive unemployment benefits.
Does your employer care about you? If corporations are going to get the perks of being “people” then they need to give a darn about their employees for the sake of humanity, argues the international president of the United Steelworkers in the story below. And we think that means holding those “people” accountable when they stumble, easier to do when there’s a dramatic accident, but also important to do for issues like long-term contact to toxic materials.
Dying for Work
Every day, 12 workers die on the job in America — often because a corporation has defied regulations or ignored standard safety procedures. Many more die prematurely from work exposure to toxic materials.
Having physical or mental impairment will not automatically make you entitled to Social Security Disability benefits.
Many people believe that if they suffer from a physical and/or mental impairment and can’t find work, this means they should be on Social Security Disability. This simply isn’t true.
Disability is not necessarily tied to your ability to obtain work, or your inability to perform one main occupation. The Social Security Administration (SSA) will review your employability not just in your immediate locality, but also in the state and region in which you live.
While only employment opportunities in your immediate areas are considered for workers’ compensation, the same is not true for social security disability. If you are unable to find work in your immediate area, the SSA requires you to move to a locality where a job exists. Note that the SSA’s responsibility doesn’t include having to find you employment, but only to establish that you are physically and mentally capable of performing that job if a position became available.
Additionally, your inability to perform the work you’ve done for years or decades does not automatically qualify you for disability. The SSA will consider skills you’ve acquired from your work life in determining whether those skills allow you to “transfer” to or perform other occupations. It’s important to also remember that the SSA isn’t really concerned with how much those other occupations may pay. If you can work full-time in a position that is available in your state and region, this will normally disqualify you from receiving disability.
The conditions which the SSA imposes upon a claimant are unfortunately, not always feasible or fair. Nevertheless, as it is the current state of the law, compliance is required.
Communicate with your doctor and follow a few guidelines to stay safe when you return to work.
In virtually all workers’ compensation cases an injured worker has to return to work in some capacity. Often these are very stressful situations and it is not uncommon for issues to arrise including conflict with an employer over what a safe return to work actually is. Your goal should be to continue to earn a paycheck while at the same time not risking further injury. Many times this is easier said than done.
Whether it’s a supervisor who ignores your restrictions or a human resources department that actively skirts them, issues frequently come up. We see employers do everything from requiring an injured worker to lift or stand more than they should, to pressuring an employee to return to work the day after a surgical procedure.
You can expect that a nurse case manager or HR specialist from your employer is communicating with your doctor’s office about your return to work. Sometimes they may misrepresent the work that they expect you to do upon your return. It is your job to fill in the gaps.
The most important thing an injured worker can do is communicate with his or her treating physician.
- Educate your doctor about the job you were doing when you were initially hurt.
- When you are assigned to work, educate your doctor about the light duty job you are doing.
- If you are assigned to a job that is difficult for you to perform due to your injury, talk to your doctor about what aspects of that job are difficult. The doctor will likely be willing to restrict you from doing that specific activity.
- If your employer is Continue reading