Monthly Archives: February 2013

Todd Bennett Serves NATA as Seminar Presenter

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Attorney Todd Bennett

The Nebraska Association of Trial Attorneys (NATA) Workers’ Compensation Seminar was recently held in Omaha. Firm partner Todd Bennett was one of the presenters to the almost 90 people who braved the winter weather to attend. He discussed “Farm Workers Under the Nebraska Workers’ Compensation Act.”

He was motivated to share his expertise because of his experiences representing farm workers, Bennett said. Injured workers, including farm workers, need the protection and benefits that workers’ compensation can provide, but many states’ limit how workers’ compensation is applied to farm workers.

“It is a web of statutory exceptions that you have to wind through in order to obtain a recovery,” Bennett said. “Working in a farming operation is dangerous business. Despite being the staple profession that helped make this country, thousands are injured and hundreds die each year due to the dangerous functions and exposures they face.”

Generally, farm and ranch hands are not included under workers’ compensation coverage and benefits, Bennett said.  However, there are many exceptions that would bring a person under workers’ compensation coverage, and then the worker would receive the protections and benefits of someone who is injured on the job and unrelated to the owner of the farming operation. The statute in Nebraska that applies here is §48-106 (7). Because an employer has to have an employee sign the following written notice either when hired or at least 30 days before the employee’s injury for the exemption to hold: “In this employment you will not be covered by the Nebraska Workers’ Compensation Act, and you will not be compensated under the act if you are injured on the job or suffer an occupational disease. You should plan accordingly.” If this process isn’t done, according to the statute, then the employer can be held liable and included in the workers’ compensation act “for any unrelated employee to whom such notice was not given.”

Helping guide injured farm workers and others through the statutes is why Bennett believes in his work and made this subject the focus of his presentation.

“Farming is dangerous work, and many are injured and several die performing this work. Many accidents are preventable, and despite having a valid claim, many go without the statutory benefits they deserve. Many also think ‘lawyer’ is a dirty word. However, knowing how to lead through the steps in the law and knowing which forum to bring the case in order to obtain a recovery for a farm or ranch hand is hard to do, but it is a necessary and noble thing for those in need. It’s an honor to bring justice to those who deserve it and are in need of it.”

Firm associates Brody Ockander and Brianne Rohner also attended the NATA event. The program was approved for continuing education by both Nebraska and Iowa MCLE Commissions, according to the NATA website.

It is important for attorneys to stay current with the law, and the firm’s members are encouraged to participate in continuing education and networking opportunities through professional associations. It is also helpful for attorneys to share legal knowledge through presenting at professional development opportunities like the NATA seminar. Over 510 people, including law students, are NATA members.

Bennett also recently attended the Iowa Association for Justice’s (IAJ) 22nd Annual Workers’ Compensation seminar, as he is licensed to practice in both Iowa and Nebraska. Topics covered included the interplay between workers’ compensation and immigration; unemployment law basics; understanding diagnostic testing; understanding the process of further review on appeal; and addressing issues in representing over-the-road truck drivers.

“This event was valuable to aid in the process of representing many workers with many and different issues as they continue to fight for the same rights when they face dealing with work injuries,” Bennett said.

Average Weekly Wage Decides Workers’ Comp Benefits

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Workers’ Compensation benefits are partially determined by your average weekly wage.

One of the factors that determines how much you receive in workers’ compensation benefits is the calculation of your average weekly wage. In Nebraska, in most cases, average weekly wage is calculated by:

  1. going back 26 weeks
  2. multiplying your hours times your straight time pay
  3. excluding abnormally low-hours weeks (generally those of 32 hours a week or less)
  4. taking the total amount of wages earned in non-abnormally low work weeks divided by the number of non-abnormal weeks.

Multiply your average weekly wage by two-thirds, and that is what you should receive for your weekly workers’ compensation benefit. That amount is exempt from federal and state taxes in Nebraska, so your work comp check should oftentimes be close to your actual take-home pay, unless you are working a lot of overtime.

There are all sorts of exceptions to the basic way to calculate average weekly wage. If you receive a fixed amount for room and board as part of your contract, then that amount is included in addition to your wages. If you just started at your employer, then a court might look at what other workers were making in the six months before your injury to determine your average weekly wage. An employer might also try to reduce your workers’ compensation benefits if they can deem you a “seasonal employee.” School-district employees will often be paid workers’ compensation benefits based off a weekly average of their annual pay.

There are two types of workers’ compensation benefits: temporary and permanent. Employees who work less than 40 hours a week will be paid permanent disability benefits based on a 40-hour week. But please keep in mind that all of these rules vary from state to state.

Legal Assistant Kia Itzen Serves LLPA

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Legal Assistant Kia Itzen has been named chairperson of the Facebook page for the Lincoln Legal Professionals Association (LLPA). Her volunteer duties include promoting the LLPA through social media to provide information, offer continuing education opportunities, and also provide inspiration for the 102 people who have liked the page. Examples of topics covered include workplace efficiency, representing employers well to clients, and advocating for clients’ needs.

“My goal in this leadership role is to have the page be more interactive,” Itzen said.  “It’s a resource where associates can have like conversations with peers in our careers, get tips and be inspired as well as find motivation as a professional in the legal field.”

The Facebook site can be accessed at https://www.facebook.com/pages/Lincoln-Legal-Professionals-Association/109562342435363?ref=hl for more information.

LLPA includes 59 members who represent 21 different law firms, businesses, government groups, and educational institutions in the area. Monthly meetings encompass both professional development and social opportunities, and the group also awards a scholarship to students studying in the legal field. LLPA include those working in the legal field, such as legal assistants, paralegals, court reporters, teachers and students, and others. The mission statement held by the LLPA can be found here. The group is associated with the Nebraska Legal Professionals Association, which has four chapters in the state.

Why Do Roofers Fall From Roofs? Is it just because of gravity?

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Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law in New Jersey. I find this blog post from my respected colleague very timely, as it gets nicer in the Great Plains and more workers are outside. For those working at heights (and even those on the ground) please keep in mind that early spring rains and ever-present wind make safety equipment even more important. I, too, am happy that “OSHA is moving forward with enforcement against roofing companies,” according to Mr. Gelman. It can’t come fast enough. Please be safe!

Today I received an urgent call from attorney representing a client in New Jersey who fell from a roof. Before she told me the job description of the injured worker, now in a coma, I correctly anticipated that it was probably a roofer who had fallen from a roof, yet again.

This scenario has played out in workers’ compensation claims for decades. How the accident happened is usually an argument with the employer. The employer claims that the employee was either intoxicated or not following safety precautions. My instinct always tell me that this is probably incorrect, since roofers tend to lose their balance and fall for many other reasons, including “gravity.”  Some reason a deprivation of oxygen and/or exposure to toxic neurological irritants contained in the roofing materials, and weather related events that make roofs slippery.

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Report Your Injury Right Away

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Truckers especially need to pay attention to this blog post. Most states require you to provide notice of your work injury to your employer as soon as is practicable. Failing to do so might prevent you from getting workers’ compensation benefits.

Because truckers are always on the go, sometimes they may not remember to report their injuries right away. Instead, maybe the trucker will simply finish the route and decide to get checked out later, completely forgetting to inform the employer. This can become a problem later and potentially could give your employer a reason to deny paying work comp benefits or paying for treatment for your work injury. Unfortunately, this is a fairly common mistake, as pointed out on one of the firm’s websites, www.truckerlawyers.com.

The moral of the story is if you’re hurt, tell your employer immediately. Communicate via your Qualcomm, call in, radio, email, or do whatever it takes, even if you have to call from the doctor’s office. Even if your injury seems insignificant at first, you’ll still want to give your employer notice. You’ll be better off in the long run.

Do I Have to Take a Drug Test?

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I recently received the following inquiry from a potential client via the Internet:

“I had an accident at work and broke my hand. I went to the doctor the same day and was treated for it. While I was there I never gave a urine or blood sample. The next day my boss asked if I would take a random test and I declined because they can’t prove I was under the influence at the time of the accident, not saying I was. So was that the right or wrong thing to do?”

Before responding to this worker’s situation, I would ask questions that included the following thoughts, depending on where the worker was within the workers’ compensation and employment process:

  • Where was the worker from, as laws vary from place to place?
  • Who is/was the worker’s employer?
  • What was the worker doing when injured?
  • What is the employer’s policy on random drug testing?
  • Is the worker still employed at the company?
  • Is the worker receiving workers’ compensation benefits?

Knowing those specifics would help tailor my response to the circumstances, but generally speaking, it’s not a good idea to disobey a supervisor’s request. However, depending on the circumstances here, this worker might have Continue reading

Nebraska’s Evidence-Based Medicine Proposal And The Golden Rule

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Nebraska big business and big insurance has introduced a bill to impose evidence-based medicine and utilization review (EBM/UR) on Nebraska workers. The proposal, LB 584, designates a California corporation to review what kind and how much medical care our injured workers are to receive. I have many criticisms of the bill that will be discussed from time to time. One of my fundamental problems is who reviews the care proposed by Nebraska doctors for our injured workers.

Most EBM/UR systems involve reviews by doctors, many of whom are retired, from other states. These doctors aren’t familiar with the high-quality doctors who practice within the state. Illinois has a form of EBM/UR, and my Illinois colleagues informed me that some of the utilization review had been outsourced to India. The Illinois Department of Insurance has recently dealt with these out-of-state reviews by requiring that Illinois doctors must be reviewed by other Illinois doctors. Peer review of care ought to done by peers, not some stranger half a planet away.

Would the business and insurance interests pushing EBM/UR want their treatment recommendations for a loved one second-guessed by a retired physician in another state or an offshore physician? Especially when that treatment recommendation was made by a trusted Nebraska physician who knows the loved one’s individual circumstances? I understand that business is always concerned about costs, but the worker must be protected. Workers should be treated as businesses would like their loved ones be treated. Sadly, big business and big insurance doesn’t seem to think the Golden Rule applies to injured workers and their families.

Proposed Nebraska Legislation: Pay Workers’ Comp Medical Bills Promptly

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Nebraska State CapitolSometimes, there are complexities within the arguments over workers’ compensation laws. And it almost always involves money. It’s too bad that in so many states, money comes before workers.

But I don’t think that’s currently the case here in Nebraska. Although we have a mostly fair workers’ compensation process that started about a century ago, more efforts can always be made to advocate for workers’ rights, especially when those workers have been injured and are protected through the workers’ compensation system. Because when a worker is dealing with being hurt and all the stress that comes with an injury, worrying about all the bills coming in should take a backseat to getting as healthy as possible under the circumstances.

A bill in the Nebraska Legislature, LB291, “would require that medical payments be paid within 30 days after notice is given to the employer or after a final order of the compensation court,” according to the “Unicameral Update.” Sponsored by Sen. Jeremy Nordquist, the bill was the subject of a recent hearing in the Business and Labor Committee. It essentially protects workers’ credit scores and prevents further stress by making sure the bills related to a worker’s injury are paid in a timely manner by the party that’s supposed to pay the bills in a workers’ compensation claim: the employer, which firm shareholder Roger Moore noted in a recent blog post. And it also brings that part of the workers’ compensation process into line with the penalties that employers incur if they withhold workers’ checks, an issue that attorney Brody Ockander addressed in a 2012 blog post.

If passed, the bill would really add some teeth to the notion of having workers’ bills paid promptly, and would reassure a large number of our Nebraska clients who get not only bills, but many other financially-related and upsetting communications from healthcare providers, when employers don’t pay in a timely matter. According to the “Unicameral Update: The Nebraska Legislature’s official news source since 1977” story, “Under the bill, 50 percent of the amount payable would be added to the charge and paid to the employee if the medical payment is not paid within 30 days.”

The anti-worker, pro-business Nebraskans for Workers’ Compensation Equity and Fairness was one of the groups that testified in opposition of the bill because “current law already compensates employees fairly … so paying additional sums to them would provide a ‘windfall’ to injured workers,” according to the “Unicameral Update.” I don’t think the term “windfall” is accurate, as the intent is to penalize the employers for not following through on their commitments in a timely manner, and we all have to pay late fees in life if we don’t pay our bills on time, so why should employers be any different? Besides, if employers did what they were supposed to by supporting hurt employees on workers’ compensation, honestly, we would have a lot fewer clients! Attorney Roger Moore noted the exact concern this bill addresses in a 2012 blog post: “The reality is that most of our clients come to us because their injury-related medical bills are not being paid or they’re not being paid for time off from work due to their injury.” So instead of a “windfall,” because nobody asks to or wants to get hurt, I see this penalty as another way to protect injured workers and hold employers accountable.

The reality is that the attorneys and staff at Rehm, Bennett & Moore will always advocate for workers’ rights. We will continue to write blog posts specifically about bills in the Nebraska Legislature that could affect workers, both positively and negatively, if passed. Be sure and follow the legislature while in session by going to http://nebraskalegislature.gov/. Because I think an inscription by philosopher Hartley Burr Alexander on the Nebraska Capitol building says it best: “The Salvation of the State is Watchfulness of the Citizen.”