Category Archives: Nebraska

Remember Workers’ Memorial Day on April 28

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The writers of this blog spend a lot of time encouraging readers to reflect by thinking about the lives of others who are less fortunate, where each individual reader has been, and where they are headed. We often encourage advocates for workers’ rights and safety. This encouragement does sometimes come at the expense of business profits. But keeping workers safe is always the right thing to do.

Observing Workers’ Memorial Day on Monday, April 28, is one way to take the time to reflect, act as an advocate, and help workers and their loved ones. This AFL-CIO fact sheet included the thought-provoking quotation below, along with some specific points that encourage action.

“This year we will come together to call for good jobs in this country for all workers. We will seek stronger safeguards to prevent injuries and save lives. We will stand for the right of all workers to raise job safety concerns without fear of retaliation, and for the freedom to form unions and speak out and bargain for respect and a better future.”

By reflecting on the risks that all workers take and acting to promote safety, we think Workers’ Memorial Day will be even more successful. And most importantly, all of our loved ones will have safer workplaces.

There are many resources to access to find out more about Workers’ Memorial Day events near you. Today’s blog post was written a couple of weeks in advance of the events so people can plan ahead to attend.

Here are some links, along with the specific information for Nebraska and Iowa:

Iowa

Nebraska has three separate events available to the public this year. 

  • USMWF’s 5K Family Fun Run/Walk Fundraiser
    Sunday, April 27, 1:30 p.m., Registration Starts
    Holmes Lake Park, Lincoln
    via http://www.usmwf.org/NE5KRUN.htm to sign up, learn about fees, and get more details about the event
  • Nebraska’s 3rd Annual Safety Expo
    Monday, April 28, 8 a.m.-3:30 p.m.
    IBEW Local 265 Union Hall, 6200 S. 14th St., Lincoln
    Via http://www.usmwf.org/NE5KRUN.htm
    The event is free, but space is limited, and registration is required by printing out or emailing this form http://www.usmwf.org/safety_expo_form.pdf As of April 9, there were still spaces available to attend.
  • 5th Annual Workers’ Memorial Day Candlelight Vigil
    Monday, Apr. 28, 7 p.m.
    Nebraska State Capitol, Lincoln
    via http://www.usmwf.org/NE5KRUN.htm This event is also free, and no registration is needed.
    According to the Lancaster County Democratic Party, via email in 2013, “representatives from State, Federal, United Support Memorial for Workplace Fatalities (USMWF), Unions, Co-workers, Employers and the community come together and honor the men and women that have been injured or killed in a preventable work related incident.”

Please see the websites below for more general details about Workers’ Memorial Day: http://www.workermemorialday.org/WMD2014.htm  

Workers’ Compensation May Cover Weight Loss Treatment, Surgery

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Gastric bypass is one type of weight loss surgery

Obesity is a disease that affects Americans in many ways.

Workers’ compensation is affected by obesity as well. A work injury or disease, coupled with chronic obesity, frequently becomes much more difficult to deal with. The usual methods of treatment may not be possible for an injured worker living with chronic obesity. 

Thomas A. Robinson, a noted expert on workers’ compensation, recently posted a great discussion on obesity treatment. The well-written article discusses how various state workers’ compensation systems deal with these problems. The short answer is some states award benefits for treating obesity as part of the work injury, and some don’t. Nebraska and Iowa have cases denying gastric bypass surgery based on factual findings that it was not necessary to treat the work injury, but leaving to door open with more proof of medical necessity. 

Our firm has had at least one case where gastric bypass surgery was paid voluntarily when it was apparent the surgery was necessary to enable proper treatment of a serious work injury. A workers’ compensation trial award was entered in early January awarding gastric bypass surgery as necessary to reduce weight so a back surgery could be performed safely. This award reinforces that with proof of medical necessity to treat a work injury, weight loss treatment and surgery may be covered by workers’ compensation in Nebraska.

What is Workers’ Compensation Law in Nebraska?

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Before workers’ compensation was an option in Nebraska, injured workers could only sue their employers under tort law for damages. While providing complete compensation – i.e., damages such as those for pain and suffering were available – it also required proof of negligence, and claims were often barred by affirmative defenses such as assumption of the risk and contributory negligence. For more than 100 years now, injured workers have had the protection of workers’ compensation laws that provide for no-fault benefits that are received quickly, and employers can avoid more expensive court challenges.

The Nebraska workers’ compensation system includes a dedicated court, and Nebraska is one of the only states to have this avenue for injured workers.

There are several different types of benefits that an injured worker is entitled to:

1.      Benefits to manage or cure the injury: includes hospital, doctor, chiropractic and physical therapy costs. This also includes the costs of diagnostic testing, doctor-prescribed medicine (even if it’s over-the-counter) and items like braces.

2.      Compensation while temporarily disabled: These payments of two-thirds of an injured worker’s average weekly wage may start after an injured worker has been off work for seven days, and usually an injured worker continues to collect payments – either for total or partial disability – while he or she is convalescing until a doctor signs off on a full return to work and/or places an injured worker at maximum medical improvement.

3.      Compensation for permanent injuries: These benefits are two-thirds of an injured workers’ average weekly wage (or wages earned in a 40-hour work week for part-time workers) and are available after an injured worker has reached maximum medical improvement. These benefits may be for permanent impairment to a specific body part or may be to compensate for an injured worker’s loss of earning ability. This distinction depends on the type of injury. Benefits may also be partial or total, depending on the type and degree of injury.

4.      Vocational rehabilitation: These are services provided under Nebraska workers’ compensation law to injured workers when, as a result of a compensable injury, the injured worker is unable to perform suitable work for which he or she has previous training or experience. This may include job placement and retraining. 

5.      Death benefits: If a worker dies as a result of his or her injury, that worker is entitled to medical expenses as well as burial expenses up to $10,000.  The deceased worker’s dependents are also entitled to benefits, which vary depending on the circumstances.

If the system worked the way it was supposed to, employers (or their insurance companies) would pay injured workers, pay the medical bills, and focus on getting the worker either back to work or moving on with the best quality of life possible. The reality is that employers (and their insurance companies) don’t always see eye-to-eye with doctors’ opinions or treatment recommendations, or follow work restrictions. Speaking with an experienced attorney when navigating the workers’ compensation system can reassureinjured workers and their loved ones and make a very stressful time a little less difficult.

Different states have workers’ compensation systems that vary, but all, to some extent, are intended to protect injured workers. If there are questions, please contact the firm and provide the details to an attorney who can advise on the best steps to take for each specific situation.

Harvest Time Reminds of Need for Grain Handling Safety

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The grain harvest is still going strong in many portions of the Great Plains, but farmers and agricultural workers may be at that point where they just want to get it done and take shortcuts. However, taking shortcuts can often lead to bigger safety problems for these ag workers.

Although folks who are in the field and transporting grain to elevators are much more visible right now, safety issues with grain elevators go on throughout the year. So for people who live or work around grain elevators, which would be pretty much everyone in many small Nebraska and Iowa towns, please be aware of the dangers that grain handling can present, including explosions from grain dust, falls, or suffocation, among many of the other hazards out there.

One of the area television stations, 10-11 Central Nebraska, recently featured a special report on “Nebraska Grain Industry Safety” titled “OSHA, Grain Industry, and Families Work to End Injuries and Deaths.” 

That effort got us thinking about compiling a list of links and previous blog posts that we have run in regards to both agriculture and also grain handling as resources.

Here are a couple of general links, and then below that are links to past blog posts from the firm that talk about either workers’ compensation for ag workers or grain-handling issues.

OSHA Safety and Health Topics: Grain Handling

Facebook Community: Grain Mill Accidents

OSHA Looks at Challenge of Nebraska Grain Elevators’ Safety

Learn & Live: Grain industry hazards lead to deaths, injuries each year; US Labor Department’s OSHA working with Nebraska grain associations to promote awareness of grain industry hazards

Employer Pleads Guilty for Grain Elevator Death

Temporary Employees Cannot Be Excluded From Workers’ Compensation

The 11 Most Life-Threatening Jobs on the Planet

What Nebraskans In Farming Industries Should Know About Workers’ Comp

Please continue to be safe this harvest and avoid dangerous shortcuts! Because all loved ones deserve to have their workers come home to them.

OSHA Looks at Challenge of Nebraska Grain Elevators’ Safety

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gain_elevator.JPGIn the years that I have practiced workers’ compensation law, I’ve represented a lot of clients who have been hurt in grain-elevator incidents, including workers who were victims of elevator explosions, falls, pinch injuries resulting in amputation, and grain suffocation. It seems like the same issues arise over and over.

Dealing with these seemingly perpetual incidents is one of many reasons that “OSHA … has made Nebraska grain elevators an ‘industry of local emphasis,’” according to this important article in the Omaha World Herald, written by Russell Hubbard, that I think had a lot of really interesting points.

There are dangers prevalent in the industry that include “confined spaces, combustible grain dust and slip-and-fall hazards” the story said. But the human toll is worse than considering just the dangerous scenarios. According to what Bonita Winningham, OSHA’s area director for Nebraska told the World Herald, “there has been at least one fatal engulfment each year in Nebraska going back many years; there have been three explosions this year that have burned workers.”

Often workers aren’t trained on lack the proper safety equipment for walking on stored grain, and they think they’re safe, or other safety lapses happen. And then tragedy strikes, and it’s not overly dramatic to say that this kind of setup can be really tragic for workers and their loved ones.

“It takes five seconds to be engulfed by flowing grain and 60 seconds to suffocate,” Winningham said in the story. “Our ultimate goal is for no one to ever walk on the grain, but if they do, we want them in safety harnesses and with an observer present.”

The industry’s anti-safety rhetoric and attitude can be summed up in the following example.

Quite recently, OSHA came out with a news release that cited the Talmage, Neb., elevator owned by Farmers Cooperative Co. with fines of only $22,800 based on nine serious safety violations that were discovered “after a worker was fatally injured Jan. 29,” according to OSHA, when a truck backed over Mr. Roger Teten at the grain elevator. However, I actually saw the story from the company in the Lincoln Journal Star newspaper, and they seemed defiant in their response to the citation. “Jim Luers of Lincoln, the elevator’s attorney, said the elevator will contest the penalty and the citations,” according to the story.

This was after the OSHA finding; the company wasn’t exactly cooperative with OSHA’s investigation, according to what I read in stories. From the Omaha World Herald article, “The elevator’s managers, OSHA said in court papers, refused to answer questions unrelated to the worker fatality, with their lawyer calling the inquiries a ‘fishing expedition’ designed to find violations under the guise of investigating the death.”

I find this attitude and response to the OSHA citations and fines troubling and all too common. Because if a workplace is safe, why would someone be concerned with an OSHA investigation, especially after a fatality? Besides the obvious that if a workplace was safe, there hopefully wouldn’t be a fatality in the first place. It seems to me that OSHA looking for violations should be a natural response to a worker’s death and part of the investigation itself, and not really considered a “fishing expedition” by anyone concerned for worker safety.

But I took heart from what Winningham (OSHA’s top official in Nebraska) said – that “resistance is unwise” and also that the National Grain and Feed Association just finished its annual conference in Omaha on new facility design.

“We will always investigate fatalities and catastrophes,” Winningham said in the World Herald article. “We can request the production of documents and information, and if an employer refuses, we can get a judge’s order.”

“It has happened before, she said. In just the past year, an employer in Nebraska refused to comply with OSHA inquiries. The responsible person spent five days in jail after being held in contempt of court before finally agreeing to comply, Winningham said.”

Even with its shortcomings, I am glad that OSHA is there to prod and pull and industry to increased safety for workers, even if individual actors in the industry, are resistant to providing a safer workplace for its employees.

Workers’ Memorial Day Provides Time to Reflect, Act

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It seems like we spend a lot of time encouraging readers to reflect by thinking about their lives and the lives of others who are less fortunate. We also encourage folks to advocate for workers’ rights and safety. And yes, this encouragement does sometimes come at the expense of business profits.

One way to reflect, act and help workers is by observing Workers’ Memorial Day on Sunday, Apr. 28.

“Each and every day in this country, on average 13 workers die on the job as a result of workplace injuries – women and men who go to work, never to return home to their families and loved ones,” according to the AFL-CIO.

It seems especially bittersweet to us that the number of workers killed for one day of the year on average is so close to the number of workers killed at the West, Texas, fertilizer plant explosion. Although it seems the media is much more focused on other news, there is a strong grassroots effort to continue the coverage of the fertilizer plant explosion in Texas, especially to figure out what caused it.

By reflecting on the risks that all workers take and acting to promote safety, Workers’ Memorial Day will be even more successful. And most importantly, all of our loved ones will have safer workplaces.

There are many resources to access to find out more about Workers’ Memorial Day events near you. Here are some links, along with the specific information for Nebraska and Iowa:

  • Iowa
    Workers’ Memorial Day Ceremony
    Friday, Apr. 26, 11 a.m.
    Iowa Workforce Development, Des Moines
    via http://www.iowaworkforce.org/labor/
  • Nebraska
    4th Annual Workers’ Memorial Day
    Sunday, Apr. 28, 7 p.m.
    Nebraska State Capitol North Steps, Lincoln

According to the Lancaster County Democratic Party, via email, “representatives from State, Federal, United Support Memorial for Workplace Fatalities (USMWF), Unions, Co-workers, Employers and the community come together and honor the men and women that have been injured or killed in a preventable work related incident.”

Please see the website below for more details: http://www.workermemorialday.org/WMD2013.htm

Texas Plant Explosion Is Too Close

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The fertilizer plant explosion in West, Texas, is a tragedy. That tragedy hits uncomfortably close to home in rural states like Nebraska and Iowa where many fertilizer plants are located.

I agree with pundits who argue that the West, Texas, explosion, is a failure related to deregulation and cuts in spending on workplace safety. However, both Bloomberg and The Wall Street Journal report that West Fertilizer Co had been fined $5,200 in 2012 by the Pipeline and Hazardous Materials and Safety Administration and also by the Environmental Protection Agency. Bloomberg reported that the Obama administration increased inspections of fertilizer plants under the auspices of Homeland Security. But the fine and inspection by the Pipeline and Hazardous Materials and Safety Administration and EPA fail to undermine the argument that the explosion is related to lax enforcement of workplace safety rules for two reasons. First of all, inspectors under the auspices of Homeland Security and the EPA don’t specifically address workplace-safety concerns. Secondly, a fine for $5,200 fails to act as much of deterrent for bad conduct.

As of the writing of this piece (Friday, Apr. 19) the national media hasn’t discussed the role that the workers’ compensation and civil justice system could play in recovery from this disaster. Though it was reported that no workers were in the plant, CNN reported that many first responders were killed responding to the explosion. Unfortunately, Texas is unique in having an opt-out workers’ compensation system. In other words, the families of the first responders killed responding to the fire may not be able to collect workers’ compensation benefits. If a Texas employer opts out of workers’ compensation, the employee can sue the employer for negligence. However the whole reason workers’ compensation was instituted was because many work injuries are not caused by employer or employee negligence. Maybe there was negligence on the part of the employers of the first responders, but if not – and there was no negligence by their employers – then the first responders will not be able to collect workers’ compensation benefits. Any employees of West Fertilizer Co who were killed or injured on the job would be in a similar predicament to the first responders. If the plant had been in Nebraska or Iowa, the workers in the plant would have been able to get workers’ compensation but likely would not be able to sue the plant.

However, if there was negligence by West Fertilizer Co and they opted out of workers’ compensation, then the killed and injured workers could sue West for negligence. Under Texas law, the fertilizer company would lose defenses such as contributory negligence and assumption of risk. Texas also has exemplary or punitive damages available for the injured and killed workers as well as other harmed by the accident.

Iowa has punitive damages, but Nebraska does not have them. In other words, a Nebraska community would have more trouble winning fair compensation for a fertilizer explosion than a community in Texas or Iowa, because Nebraska lacks punitive damages.

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.