Monthly Archives: July 2012

What to Tell Your Employer if You’ve Been Hurt on the Job

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If you’ve been hurt on the job, one of the main things you need to remember is to notify your employer after the accident.

When should you do that? As soon as is practical after the accident.

Whom should you tell? Tell your supervisor or a lead person at your company. If there was a witness to the accident, also tell that person. In addition, you may want to tell a company nurse or human-resources director.

How do you report the accident? This can be verbal, but the best way to report your accident is in writing. Most employers have accident forms – if your employer has one, use that to report the incident.

When you fill out the form, be specific about how you got hurt, when you got hurt, the date of the accident, who was there, and the pain and symptoms that you have suffered due to that experience. Be specific when you describe the body parts you injured. You may have a primary injury, such as an injury to your back or your neck. Or, you may have a secondary injury, such as an injury to your arm, shoulder, or leg. Make sure you tell your employer about every single injury that you suffered in the accident by writing it down on the accident form.

If you have any questions about whether you have properly notified your employer of an accident, seek the advice of an experienced workers’ compensation attorney and discuss your claim with them.

Should I Take a Lump-sum Settlement?

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A study shows that lump sum settlements do not discourage return to work

A study shows lump-sum settlements of workers’ compensation cases encourage return to work. Workers’ compensation laws are designed to pay benefits on a weekly basis unless there is a lump-sum settlement. Lump-sum settlements typically involve payment of a larger single payment rather than weekly payments. Injured workers often prefer the lump-sum approach for a variety of reasons. The limited nature of workers’ compensation benefits frequently leaves workers in a financial bind, and receiving a lump sum enables one to catch up. For instance, house payments can be eliminated with large settlements. Since weekly benefits end at the death of a worker, receipt of a lump sum can create some security for spouses.

There are criticisms of lump-sum settlements as well. One of the criticisms is that lump sums end all entitlement to benefits, including medical care. Another is that they discourage continued employment or return to work. A very recent study of how lump-sum settlements affect continued employment provides evidence that settlements do not discourage return to work.

An injured worker makes the decision of whether to enter into a lump-sum settlement or receive weekly benefits. Lump-sum settlement proposals are frequently made to injured workers without lawyers. A lump-sum settlement offer should be reviewed by an experienced lawyer to be sure the proposal is fair and in the best interests of the worker and her family. Injured workers should review and discuss the choice of settlement versus weekly payments with attorneys and understand the benefits and risks of each approach before deciding.

Well-documented Expense Records Increase Value of Your M&T Reimbursement

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Today’s post comes from guest author Michael Furdyna from New York. Mileage and travel expenses are usually part of the medical process in a workers’ compensation claim. It’s essential to keep detailed receipts and have a plan for submitting those expenses in a timely manner. Today’s article includes tips and suggestions on how to ensure you are reimbursed fairly for your expenses.

While receiving medical treatment related to a workers’ compensation case, claimants often have additional expenses such as mileage, fuel costs, transportation fares, and out-of-pocket prescriptions. Yet many claimants don’t realize they are entitled to reimbursement for expenses they incur in obtaining treatment.

Submitting information related to these expenses is an important part of the workers’ compensation process. Problems can arise, however, when incomplete or disorganized information is provided to an insurance carrier. This can result in delays and errors in receiving the proper amount to which they are entitled.

Claimants can avoid these sorts of problems with small acts of diligence and record keeping. Here are a few suggestions:

Save your receipts and keep a record of your doctor visits. Keeping a log and saving receipts incurred from specific doctor visits provides a “narrative” that makes it easier to tie together dates and expenses.

Make sure to use the correct form. The New York State WCB requires Continue reading

How Drug Tests Affect Workers’ Compensation

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Failing a drug test may not disqualify you from receiving benefits

Many employers require their employees to get urine tested after a work injury. If this happens to you, here are some things you should know.

1. If you are sent to a doctor’s office for a urine test, you do not have to – and probably should not – treat with that doctor for your injury.

Many occupational medicine offices, such as Concentra, offer drug testing to employees. However, in order for such a clinic to be the doctor for your workers’ compensation injury, you need to tell your employer that you chose that doctor instead of your family doctor. Choosing an occupational medicine clinic to treat your workers compensation injury would not be smart. Concentra has been accused with conspiring with Walmart to limit the care of their injured workers. Separately an occupational doctor in Lincoln (not affiliated with Concentra) will often-times change a diagnosis of injury from “work-related” to “non-work-related” with no medical evidence. The potential consequence of such a finding is that an injury that is found to be personal is not covered by workers’ compensation. If the injury is bad enough <!–more–>that you are unable to work completely, having a non-work-related injury that completely disables you cuts you off from both workers’ compensation and unemployment benefits.

If you let your employer steer you to an occupational medicine outfit, an experienced Nebraska workers’ compensation lawyer may be able to help you change doctors and be covered by workers’ compensation.

2. Failing a drug test does not disqualify you from workers’ compensation benefits if you weren’t intoxicated at the time of the accident.

Failing a drug test does not disqualify you from receiving benefits. An employer must show that your intoxication was the sole cause of your work injury. This is difficult, but not impossible. However, failing a drug test may delay payment of lost-time benefits (TTD) and limit your permanent benefits if your employer can argue that, but for you failing a drug test, that they could have accommodated any work injuries you have or might have had. The question of whether your employer could have accommodated your injury, but for you failing a drug test, is determined by a judge on case-by-case basis. If you have been fired because of a failed drug test and are not receiving workers’ compensation benefits because you can’t work, you should talk with a lawyer who knows workers’ compensation.

“Open for Business” In Wisconsin Does Not Mean An Option To Provide Workers’ Comp For Workers

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A recent article from Wisconsin colleague Tom Domer points out that workers’ compensation insurance is required, i.e., mandatory, and not optional in most states for almost all businesses. Nebraska and Iowa make insurance coverage mandatory for employers, too. And it’s not fair or realistic for employers to skimp on covering their employees workers’ comp. That’s one of the ways taxpayers can get stuck with medical bills – when a business cheats its employees and the public by not carrying workers’ compensation insurance.

Companies are trying to cut costs and demand more productivity in these bad economic times. Unfortunately, one way “start up” and other employers are attempting to cut costs is by not insuring their workers under workers’ compensation. It is simply not acceptable to allow these employers to forego this fundamental protection for their employees. We field calls daily from workers whose employers do not have workers’ compensation, who tell their employees to file claims under group insurance policies (which are shrinking) or Medicare or Medicaid. This “cost shifting” to some kind of public assistance is simply not acceptable.

Failing to hold employers accountable for not having workers’ compensation coverage puts workers at risk. It also violates fundamental fairness. It would be like not holding drivers who have basic liability insurance accountable, because uninsured drivers put everyone else on the road at financial risk. Many states (North Carolina, Texas, California, Michigan, to name a few) are undergoing fundamental workers’ compensation “reform” in the name of cost saving. One of those “cost savings” should not be the failure to purchase workers’ compensation for their employees. Every employee in Wisconsin that employs even one person who is paid $500 in a quarter must have workers’ compensation insurance, and any employer who employs at least three employees( regardless of what they are paid) must have workers’ compensation insurance.

It is simply not acceptable to allow these employers to forego this fundamental protection for their employees.

Wisconsin has an “Uninsured Employer’s Fund” for those employees whose employers should have insurance but do not. Although the Fund pursues these scofflaw employers vigorously, many employees fall through the cracks, and we all pay the price through medical expense filtering down to Medicaid, Medicare, Badger Care, or some other public assistance.

I Was Offered a Severance Agreement. Now What?

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If you are given a severance agreement, consult with an attorney

Federal law requires that many employees who are offered severance agreements be advised by their employers to consult with an attorney before signing a severance agreement. If you have a severance agreement, you should consult with a knowledgeable employment-law attorney as soon as possible. Almost all severance agreements have a short time period, usually no more than 21 days, for the employee to accept the agreement. Here are some of the factors to consider in whether to accept a severance agreement.

If you have a severance agreement, you should consult with a knowledgeable employment-law attorney as soon as possible.

A. The value of the certainty of a severance agreement versus the uncertainty of a wrongful-termination suit. This requires an attorney to evaluate the strength of any possible employment-law claims you might have against your former employer. In many cases, the value of a certain amount of guaranteed severance pay is worth more than the uncertain outcome of a wrongful-termination claim that might not resolve for at least a year. Certain types of unfair-employment practices create more fear of litigation for employers than others. Employers are often willing to pay severance in order to avoid the expense and uncertainty of litigation. This fear can give employees some leverage in negotiations, which could lead to an increase in severance pay. However, every situation is different.

If an employee decides to reject severance and pursue a wrongful-discharge claim, a knowledgeable employment-law attorney can advise you on your chances of receiving unemployment benefits. Employers, especially smaller ones, will often fight unemployment claims if there are bad feelings surrounding a termination. If an employee is found to have been fired for misconduct, they are potentially losing many thousands of dollars in unemployment benefits. Before you reject severance, you should know your chances for receiving unemployment benefits.

B. A knowledgeable employment attorney may be able to review the severance agreement and find contract provisions to offer the employer in order to increase the severance pay. The fear of litigation is a stick, but sometimes employees can offer carrots in the form of favorable contract language to increase severance benefits.

C. Severance pay is not the only consideration in a severance agreement. A standard severance agreement often includes a provision that the employee is eligible for COBRA. COBRA requires that the employee pay the entire premium for health insurance. Sometimes employers are willing to pay that COBRA premium for a period of time.

Another possible severance benefit is the guarantee of a positive reference. A severance agreement is a contract releasing any claims – usually with the exception of workers’ compensation (see below) – by the employee against the employer. However, if the employer breaches the contract in regards to a positive reference, that can give the employee a breach-of-contract claim if the severance agreement is drafted properly. Many companies are willing to check out what employers are saying about former employees for a reasonable fee, so employees can enforce contract provisions regarding positive references

D. Workers’ Compensation. The laws regarding settling a workers’ compensation claim are very precise. I have never seen a severance agreement that creates an enforceable release of a workers’ compensation claim. However a savvy employer may be able to release your workers’ compensation claim through a severance agreement under recent changes in Nebraska’s workers’ compensation law. This is why you should consult with a lawyer who is familiar with fair employment and workers’ compensation law. This is especially true if you have an ongoing workers’ compensation claim against your employer.

E. You still might be able to bring a wrongful termination suit even if you signed a severance agreement. The Equal Employment Opportunity Commission has provided guidelines about when a severance agreement is not binding on the employee. If you feel you were railroaded into signing a severance agreement, it still might be worth your time to consult with a knowledgeable employment attorney.

Work Comp Claim Denied Because I “Violated a Safety Rule”

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safety rules

If you violate a safety rule you may still be eligible for workers’ compensation benefits.

If your employer has denied your workers’ compensation injury based on the fact that you “violated a safety rule” it is likely that you can still recover the benefits you are entitled to for your work injury.

Some states limit or completely bar recovery if an employee is found to have violated a safety rule when he or she was injured on the job. In Nebraska, however, the violation of a safety rule is not automatically deemed “willful negligence” as a matter of law, which would bar any recovery for workers’ compensation benefits. Instead, the Nebraska courts rely on five factors in determining whether the safety-rule violation would bar workers’ compensation benefits for injured workers. By analyzing these five factors, the court will determine if the safety violation rises to the level of “willful negligence,” which means that the employer must prove “a deliberate act knowingly done or at least such conduct as evidences a reckless indifference to the employee’s own safety”.

These factors were adopted by Nebraska courts when Roger Moore, from our law firm, successfully argued that his injured worker-client was entitled to workers’ compensation benefits even though the worker actually violated a company safety rule when he was injured on the job. See Guico v. Excel 260 Neb. 712, 619 N.W.2d 470 (2000). The Supreme Court sided with Roger Moore in determining his client was entitled to workers’ compensation benefits based on the following factors:

  1. Whether an employer has a reasonable rule designed to protect the health and safety of the employee,
  2. Whether the employee has actual notice of the rule,
  3. Whether the employee has an understanding of the danger involved in the violation of the rule,
  4. Whether the rule is kept alive by bona fide enforcement by the employer, and
  5. Whether the employee has a bona fide excuse for the rule violation.

Of course, oftentimes your employer cannot meet these factors, and your claim should not have been denied. For example, just because your employer gives you handbook one day with safety rules you are to follow (factor 1 above) does not mean it will be able to automatically deny your workers’ compensation claim. In fact, it is highly likely that your employer will have difficulty establishing the four other factors that follow.

In sum, it may take some work and some investigation, but if your workers’ comp claim has been denied for a violation of a safety rule, chances are good that you still may be able to recover benefits for your injury.

Death By Overwork – Is It Compensable?

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Overworked

Dangerously long working hours are a problem around the world.

Workers’ compensation laws exist in virtually all industrial countries. Our respected colleague Jon Gelman from New Jersey provides an interesting article on Japanese law. Issues in the United States are similar and change as the workplace changes. Japan provides workers’ compensation death from overwork because prolonged extremely long work weeks are so common. As American work weeks get longer, perhaps we will see similar developments.

Since the 1960s there has been serious social concern over health problems due to long working hours in Japan. Around that time the term Karoshi, or “death from over work,” became known. Recent national statistics show that more than 6 million people worked for 60 hours or more per week during years 2000 and 2004.

Approximately three hundred cases of brain and heart diseases were recognized as labour accidents resulting from overwork (Karoshi) by the Ministry of Health, Labour and Welfare (MHLW) between 2002 and 2005. Consequently, the MHLW has been working to establish a more appropriate compensation system for Karoshi, as well as preventive measures for overwork related health problems.

In 2001, the MHLW set the standards for clearly recognizing Karoshi in association with the amount of overtime working hours. These standards were based on Continue reading