Category Archives: Work Injury

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.

Workers’ Comp System Not Exclusive for Neb. Case

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Lind v. Benes Heating and Air Conditioning, Inc.

Firm founder Rod Rehm won a major victory for workplace safety in Nebraska yesterday. The longstanding exclusive remedy rule for work-related injury and death cases was limited.

Lancaster County District Court Judge Steven Burns issued a ruling allowing the parents of Neil Cary, a young man killed in a workplace accident outside of Lincoln, to let a jury determine whether the negligence of their son’s employer caused his death. To a non-lawyer, this decision may not sound like news, but this ruling is big news. Historically, the exclusive remedy for injured workers and their families is to sue for limited damages through the separate workers’ compensation court system. So until this ruling, workers’ heirs couldn’t sue a negligent employer for full damages from a work-related death.

Cary’s parents didn’t receive any workers’ compensation benefits for the loss of their son. Workers’ compensation death benefits only pay money for loss of income to survivors who were dependents of the worker. If a parent is not financially dependent on the child, which is usually the case, a parent is not entitled to receive compensation under Nebraska’s workers’ compensation law. Accordingly, burial expenses and end-of-life medical care were the only benefits paid on Cary’s behalf.

The trial court judge ruled that since Cary’s parents were not entitled to any workers’ compensation, he would allow them to seek damages directly from their son’s employer. The judge ruled that workers’ compensation was not the exclusive remedy for these parents. This ruling will allow parents to recover fair compensation from employers who don’t provide a safe workplace.

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.

How Apportionment Relates to a New Workers’ Compensation Claim

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multiple injuriesCan I get workers’ compensation benefits for an injury even though I had a past workers’ compensation claim?

The simple answer is yes. In nearly all instances, you would be entitled to full benefits for your new injury regardless of whether you have already experience a workers’ compensation injury in the past.

Apportionment:

“Apportion” or “Apportionment” means that your employer is allowed to assign disability to a previous workers’ compensation injury to the same body part, which reduces the money benefits for your current injury. However, only under certain situations is your employer allowed to “apportion” benefits from your current injury to a past injury.

Specifically, in order to “apportion” your current injury to a previous injury (thereby reducing money benefits) there needs to have been a loss-of-earning-capacity evaluation for your previous injury. Often, this is not present. Even in rare situations where there was a previous loss-of-earning-capacity evaluation attributable to a previous workers’ compensation injury, your employer must still show Continue reading

Employer Pleads Guilty For Grain Elevator Death

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grain elevatorYou cannot take for granted that your workplace is safe, or that your employer is even following its own policies. Farmers Union Cooperative Supply of Stanton, Nebraska, a grain elevator, was recently sentenced in the death of an employee, Donald Stodola. Stodola was working in a confined space without proper ventilation. The lack of oxygen in the space caused Stodola’s death. Farmers knew that it was violating both a U.S. Occupational Safety and Health Administration (OSHA) regulation and its own written safety manual. Farmers’ failure to comply with regulations and its own internal policies caused a completely preventable employee death.

Farmers was fined $86,000 by OSHA because it didn’t protect Stodola from an unsafe environment. In addition to the OSHA fine, the company pled guilty to violation of a criminal statute and was fined $100,000 and placed on probation for 2 years. But, according to the Norfolk Daily News, “The criminal statute violated by Farmers provides that a willful violation of an OSHA regulation, which causes the death of an employee, is a misdemeanor punishable by imprisonment up to six months, a fine of up to $500,000 or a combination of the two.”

We think that every preventable workplace death should be prevented, and a failure to do so is inexcusable.

We do not understand why the total fines issued by OSHA and the court equal ($186,000) less than 40% of the maximum criminal fine of $500,000. Farmers pled guilty to Continue reading

Employees’ Health vs. Companies’ Profits

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Does your employer care about you? If corporations are going to get the perks of being “people” then they need to give a darn about their employees for the sake of humanity, argues the international president of the United Steelworkers in the story below. And we think that means holding those “people” accountable when they stumble, easier to do when there’s a dramatic accident, but also important to do for issues like long-term contact to toxic materials.

Dying for Work
Every day, 12 workers die on the job in America — often because a corporation has defied regulations or ignored standard safety procedures. Many more die prematurely from work exposure to toxic materials.

Workplace Injury Details Vary Between States

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Our colleagues at Domer Law Office in Milwaukee got us to thinking about what workers’ compensation injuries are most common and what their cause is.

In Nebraska, the Workers’ Compensation Court Statistical Report breaks down all workers’ comp cases by such areas as the part of the body, the cause of the injury, and the nature of the injury (amputation, repetitive motion, burn or exposure, for example). For 2010, the most recent year statistics were available, “sprains or rupture” followed by “cut or abrasion” are the most common type of injury result. The most likely part of the body to be affected by far was the upper extremities, followed by the back, then “multiple body parts.” And the most injuries were caused by strains and “fall or slip injury.”

According to Domer Law, “the Wisconsin Division of Worker’s Compensation Research and Statistic Bureau categorizes injuries by the body part and nature of injury (amputation, burn, strain, for example).” Strains and lifting injuries are the most common type of injury in Wisconsin. When it comes to body part, “injuries involving the lower back area outstrip any other body part in Wisconsin followed by knees, shoulders, and fingers. In terms of causation, lifting, pushing, pulling and straining are the most prevalent causes.”

Although there are common themes between the two states – such as strains and back injuries – there are also some differences, too, like Nebraska’s “fall or slip” cause where lifting is a bigger concern in Wisconsin. These differences may result from different industries in each state, types of workers’ compensation claims submitted to each state, and the way each state’s workers’ compensation system works. Regardless of the state, be sure to find a workers’ compensation lawyer who can best represent you if you are injured on the job.

Emergency Medical Treatment Does Not Need To Be Authorized

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If you don’t obtain prior approval for emergency treatment, you can still file a workers’ comp claim.

Today’s post is by my colleague Matthew Funk of New York.

When an injured worker needs emergency medical care, prior authorization isn’t always possible and obtaining it does not bar a workers’ compensation claim. When a worker is hurt at work and is rushed to the emergency room for treatment, there often isn’t enough time to seek authorization from an insurance company and to obtain a claim number.

At the time of the treatment, if possible, the injured worker should let the hospital and medical provider know that the injury occurred at work and the exact details of all his or her injuries. This is sometimes an effort since emergency staff are rushed and understaffed. After the emergency care is provided the worker should immediately seek the guidance of an attorney to assist in filing a claim and obtaining reimbursement for the medical care.

At the time of the treatment, if possible, the injured worker should let the hospital and medical provider know that the injury occurred at work and the exact details of all his or her injuries.

The law provides that the cost of Continue reading