Monthly Archives: March 2013

Who Calls The Shots, Your Employer-Selected Doctor Or The Insurance Company?

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Insurance companies sometimes tell doctors that they will not pay for procedures that the doctor says are medically appropriate.

Today’s post comes from guest author Nathan Reckman from Paul McAndrew Law Firm in Iowa. I think this blog post is especially useful because it shows how workers’ compensation program details vary from state to state. It turns out that the nuances are very important. Todd Bennett and Roger Moore, partners in Rehm, Bennett & Moore, are admitted to the bar in Iowa.

In Iowa, employers have the right to control an injured worker’s medical care. This means that if you are injured at work, your employer gets to send you to a doctor of their choosing. The doctors chosen by the employer are called “authorized treating physicians.” In theory, after an employer chooses their authorized treating physician, they are required to pay for any care that doctor believes is necessary to treat the work injury. In practice, the employer and their workers’ compensation insurance company often try to interfere with the care the injured worker is entitled to by refusing to pay for procedures or tests recommended by their handpicked doctor.

Typically, when an authorized doctor suggests an expensive course of care (like surgery) the first thing the doctor will do is check with the insurance company to make sure the surgery is going to be paid for. Instead of immediately scheduling the needed surgery, the doctor will wait until the insurance carrier agrees to pay for the procedure. Doctors do this so they don’t have to worry about how they are going to be paid. Asking for this unneeded authorization from the insurance company means the insurance company now has a say in determining what individual procedures are proper for the care of the work injury.

We often see injured workers whose injury was initially accepted by the employer until the doctor requests authorization for an expensive surgery. When faced with the additional cost of surgery, the insurance carrier denies the work injury hoping the injured worker will either forego surgery or try to pay for the surgery through other means, such as their personal health insurance.

This situation may also arise when the authorized doctor recommends expensive diagnostic procedures, like CT scans, or refers the injured worker to a specialist, for example a psychiatrist for depression related to the work injury.

To make sure your rights are protected, it’s often helpful to have an experienced workers’ compensation attorney on your side if you’re facing a situation where your employer is trying to interfere with the decisions of their handpicked doctor. Injured workers should get the care that their doctor, not an insurance company, determines is medically appropriate.

What Are My Rights Regarding Commissions in Nebraska?

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imgresI recently received an inquiry from a potential client about how commissions work in regards to employment law in Nebraska.

My reply included some of the following details:

The Nebraska law that deals with the payment of commissions when a worker is no longer employed, Nebraska Revised Statute 48-1230.01, can be found here. You are entitled to your commission payments at the next regular payday following whenever your commission is collected. Per the law, you are also entitled to an accounting of what commissions you have generated and which ones are still outstanding.

This is a fairly straightforward statute. While there is no way to guarantee you will be paid commissions by your employer, this statute tells you what your rights are. I would suggest you ask for an accounting of your unpaid commissions in writing. If your employer fails to give you an accounting of your unpaid commissions, they are risking criminal and civil penalties, which are covered under Nebraska Revised Statute 48-1231 and Nebraska Revised Statute 48-1232.

State laws and individual situations vary, so if you have specific questions about your circumstances, our office can help you make sure you speak with an attorney who is familiar with your area and can best assist under the circumstances.

Let OSHA Do Its Job

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OSHA is being prevented from fulfilling its mission.

Today’s blog post was written by guest author Paul McAndrew, Jr., of the Paul McAndrew Law Firm in Coralville, Iowa. It focuses on some of the unfortunate ways that the Occupational Safety & Health Administration (OSHA) has been limited by politicians over the years. He argues, and this law firm agrees, that OSHA needs to protect workers by fulfilling the mission that’s found on its website at “to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.”

In 1970, Congress passed the Occupational Safety & Health Act (the Act), which created the Occupational Safety & Health Administration (OSHA). Among other things, the Act requires every employer to provide a safe workplace. To help employers reach this goal, OSHA promulgated hundreds of rules in the decade after it was created. OSHA’s rulemaking process has, however, slowed to a trickle since then.

While the National Institute for Occupational Safety & Health recently identified over 600 toxic chemicals to which workers are exposed, in the last 16 years OSHA has added only two toxic chemicals to its list of regulated chemicals. This is because Congress, Presidents and the courts have hamstrung OSHA. For example, in March 2001 the Bush Administration and a Republican Congress effectively abolished OSHA’s ergonomics rule, a rule the agency had worked on for many years.

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses.

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses. Workers are being injured and killed by known hazardous circumstances and OSHA can’t act.

Congress and the President need to break this logjam – we need to free OSHA to do its job of safeguarding workers.

Beware Workers’ Compensation Red Flags

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Here are a couple workers’ compensation red flags I see from time to time.

Employers, insurers and sometimes even medical providers work together to undermine the ability of injured workers to pursue workers’ compensation benefits. Here are examples of phrases that should raise the alarm for an injured worker:

“If you go on workers’ comp, you only get two-thirds of your pay.”

I’ve heard this line from representatives of two major employers in Nebraska. I’ve seen the effect of this line to be

  1. to discourage an employee from getting surgery where they will be have to spend time off of work
  2. to encourage people to continue jobs that they have physical difficulties doing
  3. encourage an unwary worker to get a release without restrictions from an injury where the worker is not fully healed.

The reason why this statement isn’t honest is that workers compensation benefits are not taxed, so the benefits you would receive from workers compensation should be close to what you actually take home, assuming you do not work a lot of overtime. If an employer can use this line to persuade you not to seek medical treatment and/or to get a full release back to work before you are ready, then you are giving up workers’ compensation benefits and also likely hurting any fair employment claim you have against your employer.

“So-and-so had this surgery and they went back to work the next day.”

This type of statement is sometimes made by surgeons and/or their support staff. In my experience such a statement is a red flag because

  1. just the trauma of most surgeries in and of itself should require at least a few days before recovery, keeping in mind that the kind of surgery experienced contributes to this variation
  2. the person who went back to work right away may do a much different job than you do
  3. in my experience a doctor who states they can get someone back to work the next day will say so because it eases approval from the workers’ compensation insurer
  4. doctors who think so highly of their surgical ability oftentimes will not give permanent restrictions and impairment ratings if the worker still has a loss of function from a work injury.

Fortunately workers in Nebraska can choose their own surgeon regardless of whether they gave up their right to choose their own doctor at the beginning of a claim. Most surgeons in Nebraska understand the need cooperate in their patient’s workers compensation claims and are willing to support honest patients with legitimate injuries. However there are a few, for lack of a better word, jerks, who should be avoided by injured workers.

Daylight Saving Time Merits Safety Discussion

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Employers and employees should exercise extra caution after daylight saving time. According to a study by done by Michigan State University, work accidents increased by 5.7 percent the Monday after daylight saving time. Studies also show that people sleep 40 minutes less on the Sunday night after daylight saving time than they do normally. This may explain why many people feel tired at work in the days after daylight saving time. When people are tired it makes sense that they are more likely to have accidents.

Some people have advocated for switching daylight saving time to Friday night/Saturday morning in order for people who work Monday through Friday more time to adapt to the time change. This author agrees with that proposal. If at all possible, I also think it makes sense to try to limit hazardous activities during the transition to daylight saving time. But employees need to meet business needs and changing the date of daylight saving time would take an act of Congress. This discussion is especially interesting as National Sleep Awareness Week was Mar. 3-10 this year.

Even though the risk of injury because of sleep deprivation increases during the transition to daylight saving time, sleep deprivation increases the chances for work accidents year-round and can have other effects on people from a long-term perspective. Employees wishing to reduce the risk of accident during the transition to daylight saving time should adapt good sleep habits such as limiting exposure to light at night and ending caffeine intake in the afternoon. This link has more tips for healthy sleep habits.

Workers’ Compensation Bills Scheduled for Monday Hearings

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The Nebraska Legislature

In this, the 100th year of workers’ compensation in Nebraska, I write a lot while the Legislature’s in session about how we advocate for workers. Now it’s time for Nebraskans to get involved in the lawmaking process to protect workers’ rights.

Two bills, LB 307 and LB 584, are scheduled for hearings in the Business and Labor Committee at 1:30 p.m. on Monday, Mar. 18, in the Nebraska Legislature’s Room 2102. These bills could gut the protections workers get through the workers’ compensation system in Nebraska, including taking the choice of doctor away from workers. The bills would also take many decisions out of the realm of the doctor-patient relationship, local control, and even the state’s control, and hand those decisions to workers’ employers, insurance interests, and private companies that are focused more on making money than ensuring workers’ health and safety. A bill similar to LB 584 promoting evidence-based medicine fortunately did not get out of committee last year.

To educate folks more on some of the bills before the Legislature that affect workers and also see the perspectives the firm has to advocate for workers, please read these blog posts:

Help lawmakers hear your voice by getting involved and being vigilant! Call, email, or write your senator to share your personal story and how these bills affect real people. These links may be useful for contacting senators: Find Your Senator, Senators’ Web Pages, Senator Roster, and Business and Labor Committee. Members of the Business and Labor Committee include Sen. Steve Lathrop (District 12), Chairperson, Sen. Brad Ashford (District 20), Sen. Ernie Chambers (District 11), Sen. Thomas Hansen (District 42), Sen. Burke Harr (District 8), Sen. Amanda McGill (District 26), and Sen. Norman Wallman (District 30).

Because citizens’ involvement and interest in workers’ protections matter. Hearing from workers affects how our senators vote. So don’t take programs like workers’ compensation for granted – stand up, get involved, and be heard!

Workers’ Compensation – Safety Net for the Middle Class – Under Constant Attack

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LB 307 would take away the most basic foundation of workers’ compensation

Workers’ compensation law is one of the oldest and most basic protections working middle-class families are given by law. A current article by a pair of Washington state representatives points out this obvious but frequently overlooked truth.

Reps. Bob Hasegawa and Mike Sells point out: “Unless you’re self-employed, you’re probably covered by our state’s workers’ compensation program. It affects pretty much anyone who brings home a paycheck.”

They remind us that all jobs are covered and necessarily so because injury and disease comes about from virtually all kinds of employment: “the ranks of injured employees include everyday office employees: the guy whose back goes out after lifting too many boxes of copy paper; the secretary who can no longer click a computer mouse because of a repetitive-stress injury; or the delivery guy who shatters a hip slipping on a patch of ice. We’re talking about software designers, pizza twirlers, supermarket cashiers.”

Nebraska and Iowa, where our firm practices have solid well established laws (for more than a century) that protect the middle-class workers and their families. The Washington state representatives describe their situation this way: “Our proven, century-old workers’ comp system protects all of these employees and their families from economic ruin in the event of a severe or long-term injury. That’s the good news.”

The never-ending bad news is that this fundamental middle-class protection is under constant assault in all 50 states and the District of Columbia. Each year various business and insurance interests present bills to state legislatures asking to limit benefits, gain more control over healthcare for the injured, limit healthcare for the injured, and generally weaken protections for middle-class workers and their families.

In Nebraska, I am working with the Nebraska Association of Trial Attorneys (NATA) and other pro-consumer groups to resist the latest round of attacks on the middle class. One of the bills, LB 307, is supported by a deceptively named organization, Nebraskans for Workers’ Compensation Equity and Fairness. This bill would take away the most basic foundation of workers’ compensation laws, the requirement that these laws be interpreted liberally to protect our middle-class workers. The bill also strips workers of physician choice and allows insurance/employers to terminate benefits if you don’t go to company doctors.

Another bill, LB584, provides for treatment guidelines established by a private company in California and enforced by utilization reviews by other private businesses, including consulting doctors from all over the United States and perhaps the world. Having Nebraska physicians second-guessed by someone from another state or country seems far from fair and hardly protective of physicians or workers’ rights.

Truckers Face Roadblocks for FMLA

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Can a trucker working for a large trucking company be excluded from the Family Medical Leave Act (FMLA)? The answer is possibly yes, but drivers who know the law may be able to preserve their rights.

The FMLA only covers employees that work within 75 miles of a company worksite that employs 50 or more people. Some trucking companies have tried to exclude their employees from the FMLA by getting creative with the definition of a “worksite.” This issue has been litigated and the courts are clear about what constitutes a worksite.

In the case of Cobb v. Contract Transport, the U.S. Court of Appeals for the 6th Circuit, which covers Michigan, Ohio, Kentucky and Tennessee, gave its interpretation of the Department of Labor’s regulations about the definition of a worksite. The court determined that a worksite (as defined by the FMLA) is a terminal that is owned and operated by the company. For example, if a driver reports to a truck stop but is dispatched out of company headquarters, a court that follows the Cobb decision would find the driver’s worksite to be company headquarters where the driver is dispatched. This would likely make the driver eligible for FMLA. You can read full text of the law the court cited here: 29 CFR § 825.111.

Of course, if a driver is dispatched out of a small satellite terminal, then a court could determine that the smaller facility is the true worksite and the employer may be able to exclude the driver from FMLA. The reason for this is that if a driver has to miss work for extended period of time, he or she may inconvenience the company if they would not have enough drivers dispatched out of that small terminal to cover all their routes.