Category Archives: Disability

How Safe Is Healthcare for Workers?

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injured nurseThe article that today’s blog post is based upon is an in-depth look at how one state’s OSHA office interacts with a sector of the healthcare community: hospitals. Like Iowa, but unlike Nebraska, Oregon is one of 27 states or U.S. territories that has an OSHA office at the state level.

The “Lund Report: Unlocking Oregon’s Healthcare System” article talks extensively about nuances within ways that OSHA offices, whether state or federal, can measure the safety of healthcare providers like hospitals and nursing homes.

As evidenced in previous blog posts about senior-care workers and lifting injuries, I have continuing concerns for the safety of healthcare workers.

According to the in-depth article, “A Lund Report review suggests that in Oregon, regulators are de-emphasizing attention to hospital employee safety, despite national data showing that healthcare workers are injured in the U.S. each year at rates similar to farmers and hunters. Most Oregon hospitals have not been inspected by the state Occupational Safety and Health Division in years. And when on-the-job hazards are detected, Oregon’s OSHA office levies the lowest average penalties in the country.”

Should workers get lost as the patients are the focus of these healthcare institutions? Should regulation and inspections or fines by such groups as OSHA be the driving force toward workplace safety for healthcare employees?

It seems to me that healthcare administrators’ emphasis on profit is more important than proper concern for their employees – the nation’s caregivers. And if you or your family member is the healthcare worker who gets hurt on the job, this lack of focus on the worker is more than just a philosophical argument.

How the ADA and Injured Workers’ Protections Interact

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If an injured worker has documented and permanent work restrictions or even long-term work restrictions, thanks to the Americans with Disabilities (ADA) Amendments Act of 2008, that worker can likely invoke the protections of the ADA, unlike the injured worker in the recent St. Martin v. City of St. Paul case. He was found not to be disabled despite being permanently restricted to light-duty work.

However in Nebraska, employers are not obligated to put an injured worker in a light-duty job like they are in other parts of the country.

Injured workers have to reach out to their employers to help themselves stay employed. This reaching out could include suggestions about modifying the job or changing work hours. It’s good practice to be able to document these attempts to reach out to an employer via e-mail. If employers ignore these suggestions, then the employee has a good case for a failure-to-accommodate claim. However in Nebraska, employers are not obligated to put an injured worker in a light-duty job like they are in other parts of the country. Employers can force employees to apply for re-assignment. The employee then needs to be diligent about applying for open jobs. Otherwise, they can jeopardize an otherwise-strong ADA claim.

One trap disabled workers fall into is assuming that their employer is trying to get rid of them and failing to apply for jobs after a reasonable assignment. Courts in Nebraska take this behavior from workers as being unreasonable and use such behavior to justify dismissal of ADA claims.

Sometimes doctor-given restrictions do not match what an employee can actually do. Employees may be tempted to quit if an employer adheres rigidly to doctor-given restrictions. Technically an employer has to take an employee’s explanation of their own disability into account when setting a work restriction. However, courts in Nebraska usually require the employee to give something more than complaints of pain in order for an employer to modify doctor-given restrictions. The wisest move for an employee in such a situation is to try to do the job for a week or so and if the pain continues to consult with a doctor again about changing the restrictions. Employees might want to consider getting a second opinion if they believe their current doctor isn’t cooperating with work restrictions. However, employees should probably consult with a competent workers-compensation attorney if they are switching doctors in the context of a workers-compensation claim.

Understanding Dystonia

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Dystonia FoundationToday’s post comes to us from our colleague Len Jernigan of North Carolina.

 

Several years ago I had a client in North Carolina who was an insurance man. While taking some papers out of the back of his car at work he slipped, hit his head and developed a neurological conditon called “Dystonia.” I did some research and discovered that it is a disorder that affects the nervous system, causing muscles to contract involuntarily.

it is a disorder that affects the nervous system, causing muscles to contract involuntarily

Significantly, I also found out it can be caused by trauma, although often dystonia develops without any trauma and may be genetic. The case was denied by the workers’ compensation carrier (and Continue reading

Nebraska Law Would Deny Disability and Death Payments to First Responders in a 9/11-Type Event

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Nebraska State Capitol

Nebraska State Capitol

As we shared in an earlier post, the first responders in the 9/11 attack are being diagnosed with cancer and other diseases at a rate higher than the general public, most likely because of their exposure to the World Trade Center’s deadly dust. But it can take 30 years or more for many of the diseases, disabilities and deaths to actually strike. Many, if not most, of the victims will be retired and earning no wages by the time they get sick.

Bottom line: Nebraska law needs to be changed to treat our workers and their families better

If an event like 9/11 tragically took place in Nebraska, what would happen to the first responders? If, many years later, they got sick and disabled or died because of things they were exposed to in the line of duty, would they receive workers’ compensation payments? Continue reading

Award of permanent total disability in workers comp could still allow finding of disability discrimination

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A California appellate court recently upheld a $1.5m disability discrimination verdict against the City of Los Angeles for discharging a police officer from a light duty position after being found to be 100 percent disabled for the purposes of workers compensation. Though this may seem counter-intiutive to a lay person it makes sense if you know how workers compensation and disability discrimination statutes operate. I believe a similar verdict would be possible in Nebraska.

…disability discrimination claims hinge on whether the employers made a reasonable attempt to accommodate their employees disability.

In short, total disability in workers compensation is a measure of how a person’s limitations effect them in the general labor market, while disability discrimination claims hinge on whether the employers made a reasonable attempt to accommodate their employees disability. Continue reading