Author Archives: Rod Rehm

‘Bizarre’ Workers’ Compensation Cases Post Is Good Read

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workers-compensationWorkers’ compensation law covers a very broad spectrum of cases. Each year, one of my favorite blogs publishes its top 10 most bizarre workers’ compensation cases. This year’s list, written by attorney Thomas A. Robinson, is interesting reading.

I appreciated Robinson’s empathetic approach to the cases, which he explains in this quotation.

“One thing we always kept in mind: one must always be respectful of the fact that while a case might be bizarre in an academic sense, it was intensely real. The cases mentioned below aren’t law school hypotheticals; they affected real lives and real families.”

In addition, as is stressed on a regular basis in the firm’s blog and social-media posts, workers’ compensation laws vary between states. The variety of states represented in this list included the two where attorneys from Rehm, Bennett & Moore practice, Iowa and Nebraska, and also North Carolina, New York, Wisconsin, Washington, Florida and Pennsylvania.

Here’s the link to the original blog post: http://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/archive/2014/12/31/the-top-10-bizarre-workers-compensation-cases-for-2014.aspx

Senator Boxer calls US chemical facility safety “outrageous” and “unacceptable”

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Today’s post was shared by Gelman on Workplace Injuries and comes from scienceblogs.com

This general topic: hazardous chemicals, their storage, and how they can affect the general public, is one that has been discussed on the blog before. It is an important topic, and folks should read the entire article below to learn about the lack of progress in keeping the country’s communities safe from hazardous chemicals, including ammonium nitrate.

The section about OSHA was very useful and included both a gut check and a road map of sorts about how workers could be better protected from the huge number of chemical incidents that have occurred since the West, Texas, explosion in April 2013.

“The cap on OSHA’s fine for a serious violation, Michaels (Assistant Secretary of Labor for Occupational Safety and Health (OSHA) David Michaels) explained, is $7000; for a willful violation, $70,000.” Michaels went on to explain, “To a small company that’s a significant deterrent. But to large employers, especially petrochemical plants, that’s not even the cost of doing business.” It was noted in the article that Congress hasn’t amended OSHA’s penalties “since 1990 and only once since OSHA was established.”

“We would be very grateful,” said Michaels, “if Congress would allow us to issue penalties at a much greater level.”

I would concur that if OSHA’s broken regulatory system were given more teeth, that many more workers in the United States would be safer in the new year.

Today’s post is shared from scienceblogs.com/

As last week’s Senate Environment and Public Works Committee hearing made abundantly clear, communities throughout the United States are at ongoing risk from potentially disastrous incidents involving hazardous chemicals. A new Congressional Research Service report released concurrently by Senator Edward J. Markey (D-MA), details how thousands of facilities across the country that store and use hazardous chemicals are located in communities, putting millions of Americans at risk. Yet this list of facilities, Senator Markey’s office points out, may not be complete. The report analyzes US Environmental Protection Agency (EPA) data on locations where at least one of 140 different extremely hazardous materials are stored. But this EPA list does not include the highly explosive substance ammonium nitrate – the chemical involved in the April 2013 West, Texas fertilizer plant explosion that killed 15 people and injured approximately 200.

What has happened – or more precisely, not happened – since that incident was the focus of the December 11th Senate hearing. The hearing, convened jointly with the Senate Health, Education, Labor and Pensions Committee, was held to review progress made in implementing President Obama’s Executive Order 13650 issued in August 2013 in the wake of the West, Texas disaster.

“In the 602 days since the West, Texas tragedy there have been 355 chemical…

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Getting Rid of Old Medications

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Today’s post comes from guest author Hayes Jernigan, from The Jernigan Law Firm in North Carolina. As she writes, there are much better and safer ways to make sure unneeded prescription drugs don’t get into the water or abused by others.

Since some people choose to organize their homes at the year’s end, I thought this was a timely post. Unfortunately, as has been written about before on this blog, a National Prescription Drug Take Back day probably won’t be set for a while into 2015. I would note that if a person recycles their pill bottles, it’s also worth taking the time to scratch out the details, as described below. So please go ahead and follow the tips that ultimately provide a safer environment for all.

Have a healthy and productive 2015.

       Flushing drugs down the toilet is the old way of getting rid of unwanted, expired or unused drugs, but recent studies have shown that this practice harms our environment. Low levels of drugs, such as birth control and anti-depressants among others, are being found in our lakes, rivers and streams and are negatively impacting fish populations and other aquatic life. Long term exposure in our waters can eventually lead to drug-resistant bacteria that will ultimately render our drugs ineffective.

       The U.S. Drug Enforcement Administration has recently released recommended ways to dispose of controlled substances including take-back events, where pharmacies, hospitals or clinics allow you to bring them your unused medications for them to dispose of properly, or mail-back programs and also collection receptacle locations, where you can drop off your unused medications. You can ask your pharmacist about whether any of these programs are offered in your area or contact your city or county’s trash and recycling services. If none of the recommended take-back programs are available in your area you should follow these 3 simple steps to dispose of most medicines in your household trash:

  • Mix medicines (do NOT crush tablets or capsules) with an unpalatable substance such as kitty litter or used coffee grounds; and
  • Place the mixture in a container such as a sealed plastic bag; and
  • Then throw the container in your household trash.

(Before throwing out your empty pill bottle or other empty medicine packaging, remember to scratch out all information on the prescription label to make it unreadable).

 Sources: http://www.fda.gov/Drugs/ResourcesForYou/Consumers/BuyingUsingMedicineSafely/EnsuringSafeUseofMedicine/SafeDisposalofMedicines/ucm186187.htm

http://www.deadiversion.usdoj.gov/fed_regs/rules/2014/2014-20926.pdf

http://www.dec.ny.gov/chemical/45083.html

Photo source: http://www.citizenscampaign.org/campaigns/pharmaceutical-disposal.asp

 

Health Care Testing: A New Frontier for Worker’s Comp

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Today’s post comes from guest author Thomas Domer, from The Domer Law Firm in Milwaukee. Although the firm has featured a related blog post before, I think it is worthwhile to re-examine this subject. As has been mentioned below, there are a number of potential issues that could arise from such tests. In addition to the monetary fine for those who did not participate in the screenings, the workplace can seem less welcoming, regardless of whether person’s challenge is physically obvious. Take high cholesterol that has a genetic basis, for example. If a worker gets a fairly regular physical (annual or otherwise) through the preventative side of their health insurance benefits, that employee is probably already being treated for this issue and also probably doesn’t need the added bother of a company or contract nurse calling to espouse the benefits of decreasing that number, as these are concerns between workers and their doctors. Because for this particular issue, it is very possible that genes can trump what is considered the “healthier lifestyle” referred to below, even if that person appears to be more physically fit than other co-workers. In addition, it might be argued that genetic predisposition could be blamed when an occupational exposure is the cause, as Mr. Domer alludes to below. So even with money or benefits on the line, though losing $4,000 is definitely significant, it might be worthwhile for an employee to reconsider whether participating in a company’s wellness testing is really worth it in the long run.

As a worker’s compensation lawyer, I see many news stories through the prism of how the news event or trend will affect injured workers in the worker’s compensation system. A federal judge in Minnesota has ruled that Honeywell, Inc. can begin penalizing workers who refuse to take medical or biometric tests. 

The EEOC had claimed Honeywell’s policy violated the Americans With Disabilities Act and the Genetic Information Nondiscrimination Act. They filed a lawsuit in Minneapolis on behalf of two Minnesota employees of Honeywell.

The tests Honeywell required their employees to take measured blood pressure, cholesterol, and glucose, as well as signs that employee had been smoking. Employees who declined to take the test could be fined up to $4,000 in surcharges and increased health costs. Honeywell said the program is designed to “encourage employees to live healthier lifestyles and to lower health care costs.” Honeywell says the testing promotes employee well-being. Management also indicated “We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The ramifications of such testing for worker’s compensation immediately come to mind. In any kind of an occupational exposure claim, such tests could be used to help deny worker’s compensation claims for employees who smoke, are overweight, have diabetic condition, claims involving occupational back conditions, carpal tunnel claims, and any kind of respiratory complaints. Another “slippery slope” may be the use of these kinds of testing to actually screen prospective employees, since the employer rationale would be that hiring folks with those pre-existing conditions would cost the employer more money.

Happy Holidays to You and Yours

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Holiday greetings go out to you and yours this season. Special thanks are extended to those who are working hard to keep folks safe but are away from family during the holiday time, whether truck driver, first responder, nurse, or retail worker. Safety at home and safe travels are wished for all your celebrations.

We hope that this holiday season brings peace to so many who are hurting and hurt. May each of you have the opportunity to visit with loved ones who are held dear and take the time to appreciate those relationships with friends and family.

I hope that we can be mindful through our joy and celebrations to reach out to those who are alone but also respect those who want or need to be alone. And in this season of merriment, let’s appreciate our comfortable lives and good health and strive to help those who go without.

We are thankful for so much, and especially at this time of year, we are very thankful for family, friends, and the opportunity to advocate for clients who make our work worthwhile.

Take care traveling wherever you’re headed. Please take the time and use common sense to get to your destination safely. I send a special thank you to all, truckers, nurses, first responders and folks in other occupations who can’t be with their families because they are serving the public and keeping us safe.

I hope that all know happiness this holiday season and throughout the coming year.

The offices of Rehm, Bennett & Moore and www.truckerlawyers.com will close at 2:30 p.m. on Wednesday, Dec. 24, and remain closed on Thursday, Dec. 25, and Friday, Dec. 26, for Christmas. We will be open again on Monday, Dec. 29, at 8:30 a.m.

In addition, the offices will close at 3:30 p.m. on Wednesday, Dec. 31, and remain closed on Thursday, Jan. 1, and Friday, Jan. 2, for New Year’s Day. We will be open again on Monday, Jan. 5, at 8:30 a.m.

Happy Holidays, take care, and be safe!

James Brown and Attorney/Client Relations

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Artist James Brown

Today’s post comes from respected colleague Leonard Jernigan of The Jernigan Law Firm in North Carolina. His reflection on the documentary about legendary funk musician James Brown is a great philosophy for working with clients and can also be applied to many other situations in life. In this season of giving and the hustle and bustle toward the end of the year, give yourself permission to think about how this year has gone and what your goals are for next year. Take care, and be safe.

If you haven’t seen the recent movie or HBO documentary on James Brown, you should check it out. He made me think about these top ten client relation tips:

  1.  Treat all clients with respect and dignity.
  2.  Try to understand the stress that our clients are under, especially when they are upset.
  3.  At the same time, do not tolerate verbal abuse from clients. Respect works both ways.
  4.  Keep boundaries. Clients need you to have an objective view, not become their best friend.
  5.  Clients don’t care how much you know, until they know how much you care.
  6.  Be honest in all things, at all times. Keeps you out of trouble.
  7.  Building good relationships are the foundation blocks of success.
  8.  Keep the client informed about what you are doing.
  9.  Be prepared and be thinking about going to trial from the first day. Cases settle more often and you get better results when you are prepared.
  10. Think about James Brown. He was the “hardest working man in show business” for a reason. He gave it everything he had, and it showed.

 

 

Administration Warns Employers: Don’t Dump Sick Workers From Plans

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Today’s post was shared by Gelman on Workplace Injuries and comes from www.npr.org

I think the post is timely because it is currently open enrollment at healthcare.gov for 2015. Here’s a link with the details of deadlines and the nuances involved. Generally speaking, open enrollment is now through Feb. 15, 2015.

For those with 2014 coverage through the Affordable Care Act, current coverage ends on Dec. 31 of this year, according to healthcare.gov. Keep this deadline in mind: “If you want a new plan to start January 1, 2015, you must renew or change your plan by December 15, 2014.”

Here’s an incentive for those who are more financially motivated than motivated by having insurance to prepare for the unexpected. “If you don’t have health coverage during 2015, you may have to pay a penalty. The fee in 2015 is higher than it was for 2014 — 2% of your income or $325 per adult/$162.50 per child, whichever is more,” according to the marketplace deadlines page on healthcare.gov.

Also, a person can enroll in Medicaid or the Children’s Health Insurance Program (CHIP) anytime, according to this website. Qualifications vary by state and depend on income level or disability.

Although Nebraska was not a state that expanded Medicaid in 2013 or 2014, it is likely that the legislature will address the issue again in 2015, according to this recent newspaper article.

If you have questions about whether your employer is discriminating against you, please contact an experienced employment attorney like Jon Rehm.

Man holding pills with banknote money flying away
Man holding pills with banknote money flying away

As employers try to minimize expenses under the health law, the Obama administration has warned them against paying high-cost workers to leave the company medical plan and buy coverage elsewhere.

Such a move would unlawfully discriminate against employees based on their health status, three federal agencies said in a bulletin issued in early November.

Brokers and consultants have been offering to save large employers money by shifting workers with expensive conditions such as hepatitis or hemophilia into insurance marketplace exchanges established by the health law, Kaiser Health News reported in May.

The Affordable Care Act requires exchange plans to accept all applicants at pre-established prices, regardless of existing illness.

Because most large employers are self-insured, moving even one high-cost worker out of the company plan could save a company hundreds of thousands of dollars a year. That’s far more than the $10,000 or so it might give an employee to pay for an exchange plan’s premiums.

"Rather than eliminating coverage for all employees, some employers … have considered paying high-cost claimants relatively large amounts if they will waive coverage under the employer’s plan," Lockton Cos., a large brokerage, said in a recent memo to clients.

The trend concerns consumer advocates because it threatens to erode employer-based coverage and drive up costs and premiums in the marketplace plans, which would absorb…

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Take the Time for Ag Safety This Holiday Season

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I hope you and yours were able to have a nice Thanksgiving break. Many people aren’t afforded that luxury because of work or other circumstances, so thoughts go out to them during the holidays. Due to an incident that recently happened on a local turkey farm near Waverly, the loved ones of Mr. Joaquin Danilo Mina Munoz are grieving his death. Sympathies are definitely extended to his loved ones.

Although original reports of being “sucked into grain while working with a running auger” were incorrect, Mr. Munoz did apparently die “when his clothing got tangled on the auger blade shaft” of a grain truck, according to the tragic story.

That incident got me to thinking about safety in agriculture. Now that the corn and soybean harvests are done, some folks breathe a big sigh of relief, but they shouldn’t be lax when it comes to safety.

Unfortunately, farming is one of the most dangerous jobs on the planet. And, as firm partner Todd Bennett wrote in a previous blog post, workers’ compensation is complicated in Nebraska when it comes to ag and farming operations. In fact, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) only covers a part of the nation’s grain-handling facilities, according to a recent in-depth story in the Lincoln Journal Star. That is why safety in grain handling and in agriculture in general is so important.

In addition, OSHA recently cited Double Dutch Dairy in Shelby, Neb., for four serious violations and proposed fines of $22,500 for an incident on June 17 where a worker was “fatally injured by a front-end loader,” according to the news release in the link. The Wisconsin-based dairy was cited “after an inspection found that the driver’s view was obstructed,” when the driver struck the worker.

Now that the busy harvest season is done and the busy-in-a-different-way holiday season is upon us, I urge all workers, but especially those in agriculture, to review their safety practices and take care so all can have the luxury of spending a little bit of time with their loved ones over the upcoming holidays.