Monthly Archives: April 2012

These Things Don’t Have To Happen: Metal Plant Receives $51K Fine After Employee Is Burned

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It seems like there’s almost a headline a day about OSHA violations, and those are only the ones that make it through OSHA’s process, excluding current investigations and issues never reported to OSHA. In fact, we recently wrote about some OSHA fines that resulted from a grain elevator explosion that killed a gentleman in Nebraska. In the following guest post, our colleagues Leonard Jernigan from North Carolina and Jon Gelman from New Jersey remind us how important it is for workers and employers to care about safety every day and strive towards safer environments for employees.

(Original post by Len Jernigan re-posted with permission.)

Following basic safety precautions woud keep employees like these injury-free.

A recent blog post (below) by Jon Gelman about OSHA violations at the Anthony River, Inc plant is another example of why we need to change the lax culture of safely compliance in America. It’s human nature to pick out articles in newspapers, magazines and on-line that interest you, and when I see articles about plant explosions (like the chemical plant explosion in Apex, NC or the chicken processing fire in Hamlet, NC), or mine disasters (West Virginia), or oil spills (Louisiana), I have a heightened awareness because I have represented people in similar tragedies and I know what they are going though.

People die and families are devastated, and the really sad thing is that it didn’t have to happen. Most of us may notice these events, but until it happens to you it’s usually just a news item and not much more. Employers don’t want these things to happen, but unfortunately some of them are willing to gamble with heath and safety. They have liability insurance and workers’ compensation to clean up the mess they make, and some times they actually think the risk is worth it. No life is worth that risk.

People die and families are devastated, and the really sad thing is that it didn’t have to happen.

Here is Jon’s post (reprinted with permission):

The U.S. Department of Labor’s Occupational Safety and Health Administration has cited Anthony River Inc. for nine serious and three repeat violations of workplace safety standards after an employee was burned at the metal finisher’s Syracuse plant.

“While it is fortunate that no life was lost here, this is a graphic example of the harm that workers and businesses can suffer when basic, common-sense and legally required safeguards are neglected,” Continue reading

Attorneys Advocate for Workers through WILG

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Pictured at the WILG Board of Directors’ meeting are Paul McAndrew (Iowa), Hank Patterson (North Carolina) and Rod Rehm (Nebraska).

Rod Rehm and Jon Rehm recently traveled to Washington, D.C., for the Workers’ Injury Law & Advocacy Group (WILG) Board of Directors’ Meeting and Legislation Day on April 17. Rod has served as a board member of this organization for 15 years, and he strongly supports this group. The attorneys were advocating for workers by lobbying Congress to improve the system for federal employees and all workers on Social Security who settle their workers’ compensation cases. Rod and Jon met with key representatives from Illinois as advocates for workers on the national level through WILG.

Here’s WILG’s mission statement:

“Workers’ Injury Law & Advocacy Group is the national non-profit membership organization dedicated to representing the interests of millions of workers and their families who, each year, suffer the consequences of workplace injuries and illnesses. The group acts principally to assist attorneys and non-profit groups in advocating the rights of injured workers through education, communication, research, and information gathering.”

We encourage all lawyers who are serious about representing injured workers to join WILG.

Rod also spoke for workers at the Nebraska Breakfast, a weekly tradition since 1943. “The Nebraska Breakfast, now in its sixth decade, is the oldest and only ongoing state gathering for constituents on Capitol Hill,” according to the Nebraska Society of Washington, D.C.’s web site. All five members of the Nebraska Congressional Delegation were in attendance at that Wednesday’s breakfast. Following the breakfast, Rod discussed the legislation with Sens. Ben Nelson and Mike Johanns as well as Congressman Lee Terry.

Workers Beware Questionable (Fraudulent) Employer Tactics

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It’s time to start talking about employer fraud.

Today we have a guest post by our colleague Tom Domer of 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.
  • Employer paying worker in cash with no payroll stub (or gives workers a Form 1099 rather than a W-2). Continue reading

Spouse Dies From A Work Accident Or Occupational Disease?

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If a worker dies from a work accident or occupational disease, his surviving family members are entitled to death benefits under Nebraska workers’ compensation.

However, proving the death was work-related is sometimes complicated in situations where there is not a clear accident. For example, there are no death benefits for a worker who dies at work from natural causes simply because he died at work. Instead, it must be shown that work or something that happened at work somehow played a role in the death.

In situations that

If your spouse dies due to a work-related injury or illness, you are entitled to workers’ compensation benefits.

are not necessarily clear, especially when the insurance company tries to blame the death on some other reason or on natural causes, you will probably want to get a lawyer to help establish how the work or work exposure caused the death of your loved one. If you are able to show that the work contributed to the death, the worker’s family may be entitled to the following benefits:

Benefits for the surviving spouse:
If it can be established that work caused the death, the worker’s surviving spouse is entitled to workers’ compensation benefits every week at 2/3 of the worker’s average weekly wage at the time of death. This potentially lasts for the spouse’s life or until remarriage. If the spouse later remarries, then he/she is entitled to a lump sum payment for two years of benefits.

Benefits for surviving spouse with children:
If the deceased worker had dependent children and a spouse at the time of death, the surviving spouse is entitled to 60% of the worker’s average weekly wage plus 15% for each child. If the children don’t live with the surviving spouse, the spouse is entitled to 55% of the average weekly wage.

Benefits for dependent children:
If the worker is survived by dependent children, work comp benefits are paid to those children (in equal share) for their dependency or until age 19 (or age 25 if full-time student or the child is physically or mentally incapable of self-support).

Benefits for other family members:
There may also be benefits available for parents, brothers, sisters, grandparents, and grandchildren if it can be shown that they were dependents of the deceased worker. If dependency can be established, these types of dependents would be entitled to 25%.

Funeral Expenses:
The employer is responsible for funeral and burial expenses up to $6,000 whether or not the deceased worker had a spouse or any dependents. This was recently raised to $10,000 by the Nebraska Legislature in 2012.

Ending Distracted Driving: Federal Guidelines Proposed For Automakers

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distracted truckerToday’s post comes to us from our colleague Jon Gelman of New Jersey. It highlights the actions the Federal government is taking to eliminate the scourge of distracted driving-related injuries and fatalities.

After years of accidents in the workplace caused by the use of mobile devices in vehicles, the Federal government today proposed universal guidelines to encourage automobile manufacturers to electronically disable these devices when a vehicle is in operation.  The enforcement of this safety-first proposal may establish a legal standard to universally bar the use of such devices in vehicles and encourage employees to have a safer working environment.

See: U.S. Department of Transportation Proposes ‘Distraction’ Guidelines for Automakers
“Issued by the Department’s National Highway Traffic Safety Administration (NHTSA), the guidelines would establish specific recommended criteria for electronic devices installed in vehicles at the time they are manufactured that require visual or manual operation by drivers. The announcement of the guidelines comes just days after President Obama’s FY 2013 budget request, which includes $330 million over six years for distracted driving programs that increase awareness of the issue and encourage stakeholders to take action. “

Seasonal Workers’ Work Comp Is Paid Differently in Nebraska

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Workers’ receive slightly different workers’ compensation benefits if injured on a seasonal job.

Jobs that can only be carried out during certain seasons of the year are considered seasonal in nature. In these situations, a seasonal worker who is injured on the job is paid differently than a continuous worker in Nebraska workers’ compensation. Instead of being paid 2/3 of his/her average weekly wages based on the 26 weeks before the injury, work comp benefits for a seasonal employee are paid based on one-fiftieth of the total wages earned from all occupations during the year immediately before the accident (see § 48-126).

However, if calculating a seasonal worker’s wages that way does not fairly represent the seasonal worker’s actual wages, then the period for the wage calculation “shall be extended so far as to give a basis for the fair ascertainment of his or her average weekly earnings.”

The difference in calculation could make a huge difference in actual workers’ compensation benefits for a seasonal worker, but it’s not always easy to determine what is and is not considered “seasonal.” In Nebraska, “seasonal” means that the job can only be carried out during certain seasons but does not include jobs that can be carried out during the entire year. For example, road construction labor can be considered seasonal unless the job requires working in the winter months, manufacturing road materials and repairing equipment. In other words, determining what is seasonal is very fact-intensive. Therefore, if you are injured at work and your job might be considered seasonal, it would be best for you to contact a lawyer to ensure that you are being paid fairly at the seasonal worker rate rather than 2/3 of your average weekly wage.

Report Injuries Right Away Or Risk Losing Compensation

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Don't wait to report your work injury!

Today’s post comes from our colleague Tom Domer of  Wisconsin. The ruling Mr. Domer discusses came from the 6th Circuit Court of Appeals, which includes the states of Kentucky, Michigan, Ohio, and Tennessee. Nebraska’s U.S. Circuit Court of Appeals is the 8th, which also includes Arkansas, Iowa, Minnesota, Missouri, North Dakota, and South Dakota. Please contact us for more information about how this scenario applies to Nebraska or Iowa.

A U. S. Court of Appeals has ruled that an employer can require an employee to report their worker’s compensation injury even more quickly than required under Worker’s Compensation Law.

A Tennessee machinist experienced pain in her hands when she was transferred to a new position that was “like a muscle strain” when she pressed down on her machine and the pain stopped when she let go. The pain continued over the next two weeks, progressing to numbness and tingling, which forced her to see the Company Nurse. The nurse asked her why she had not reported her pain earlier and she said she wanted to “try to work through it” because she needed the job and did not want to tell her employer she could not do the job.

The next day the company fired her for failing to communicating an injury in a timely manner. She filed a claim with the Tennessee Worker’s Compensation Department and the District Court, which dismissed the claim. On appeal, the 6th Circuit noted that even though State law allowed employees 30 days in which to report a gradually occurring injury, the employer had the right to terminate based on its own policy of not reporting.

Don’t Be A “Tough Guy”

I see these claims often in my practice; claims in which the individual sustains an injury and wants to work through the pain or otherwise see if the pain will go away. Under these circumstances the worker does not report the injury. Since all injuries in worker’s compensation are based on a date of injury, this heroic “non-reporting” ends up biting the worker in the rear. For many employers, no report means no injury.

Gradual Occupational Claims

This “I’ll work through the pain” motive is especially damaging in occupational injury claims, which arise from repetitive motion and not the result of a single trauma. While it is understandable that an employee not be characterized as a “whiner” or “complainer” in the worker’s compensation setting, those who do not report do not benefit.

 

How Workers’ Compensation Settlements Affect Social Security Benefits

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It is fairly common for an injured worker to receive Social Security disability benefits and also receive a settlement for workers’ compensation. According to Social Security, “If you receive workers’ compensation or other public disability benefits and Social Security disability benefits, the total amount of these benefits cannot exceed 80 percent of your average current earnings before you became disabled.”

Here’s how I handle this situation: in any settlement where an injured worker is receiving Social Security Disability Insurance (SSDI) benefits, an attorney representing that person and/or the injured worker must think about how a lump-sum settlement affects the SSDI benefits for the person. There will probably be a decrease in benefits because “workers’ compensation and other public disability benefits may reduce your Social Security benefits,” according to the Social Security Administration.

Some items can be kept out of the workers’ compensation settlement total for Social Security benefits purposes. This list includes, but is not limited to, such things as: attorney fees; litigation expenses; past medical bills that need to be paid; future medications expenses; future medical care expenses; and vocational services expenses. Taking away these parts of the settlement can and should increase the value of the net settlement to the injured worker. The remaining net settlement should then be distributed proportionally over the injured worker’s life expectancy. The overall result of your attorney preparing for your settlement by making these calculations means that a workers’ compensation settlement will decrease your Social Security disability benefits less.