Tag Archives: agriculture

It’s Harvest Time: How Farming and Workers’ Compensation Intersect in Nebraska

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"So God Made A Farmer" -Paul Harvey

“So God Made A Farmer.”

-Paul Harvey

As the harvest season approaches, Nebraskans should be reminded that farming and agricultural operations are a dangerous business!

There are approximately 3.1 million men and women who work on America’s 2.3 million farms and ranches. According to Accident Facts published from 1990 through 2004 by the National Safety Council, farm accidents and other work-related health problems claim as many as 1,300 lives and cause 120,000 injuries a year, most of which are preventable. 

As A General Rule:

Employers of farm or ranch laborers are generally exempt from the provisions of the Nebraska Worker’s Compensation Act, and farm or ranch laborers injured while employed by someone operating a farm or ranch are not entitled to receive any of the benefits under the Nebraska Worker’s Compensation Act.

However, that is not the end of the discussion. There are exceptions that you must be aware of that can indeed bring a farm and ranch hand under the protections of the Workers’ Compensation Act.

Every farm or agriculture operation, that is not required to provide workers’ compensation coverage to its unrelated employees, shall give all unrelated employees at the time of hiring (or more than 30 days prior to the time of injury) the following written notice which shall be signed by the unrelated employee and retained by the farm or agriculture operation employer and can be found here in statute:

“In this employment you will not be covered by the Nebraska Worker’s Compensation Act and you will not be compensated under the act if you are injured on the job or suffer an occupational disease. You should plan accordingly.”

If A Farming Operation Failed To Provide Notice – Then What?

If the above-required notice was not given to all unrelated employees, signed by them, and retained by the employer, then, in Nebraska, when work is performed by a worker when performed for an employer who is engaged in an agricultural operation and farming and that employer employs 10 or more unrelated, full-time employees, whether in one or more locations, then all unrelated employees shall be covered under the Nebraska Worker’s Compensation Act.

As a result, for every farm or agricultural operation that fails, neglects, or refuses to comply with providing and retaining proof of the required notice, then this farm or agricultural employer shall be required to respond in damages to an employee for personal injuries, or when personal injuries result in the death of an employee, then to his or her dependents.  

So The Farming Operation Doesn’t Have Workers’ Compensation Coverage? 

 “If an employer subject to the Act fails to carry workers’ compensation insurance or an acceptable alternative, then the Act is no longer the employee’s exclusive remedy. Instead, the employee can elect to either proceed under the Act and recover the statutorily set benefits or seek to recover damages in a common-law action against the employer.”

Avre v. Sexton, 110 Neb. 149, 193 N.W. 342 (1923)

Defendant is Deprived of Important Defenses

Under §48-103 of the Workers’ Compensation Act, Defendants are statutorily denied three affirmative defenses due to their lack of workers’ compensation coverage: “If an employer, as defined in § 48-106, does not carry a policy of workers’ compensation insurance … he or she loses the right to interpose the three defenses mentioned in section 48-102 in any action brought against him or her for personal injury or death of an employee.” Neb. Rev. Stat. §48-103 (2006) (emphasis added). 

Section 48-102 provides:

“In all cases brought under sections 48-101 to 48-108, it shall not be a defense (a) that the employee was negligent, unless it shall also appear that such negligence was willful, or that the employee was in a state of intoxication; (b) that the injury was caused by the negligence of a fellow employee; or (c) that the employee had assumed the risks inherent in, or incidental to, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances, which grounds of defense are hereby abolished.”

So, if you, or a loved one, are injured while working for a farm, farmer, agricultural operation, ranch, etc., you may be entitled to the all-important state protections of workers’ compensation benefits, but you may also have a right to file in District Court to pursue common-law damages and pain and suffering. If this is the case, seek the advice of a knowledgeable attorney to help you determine your rights.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Workers' Compensation, Workplace Injury and tagged , , .

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.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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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.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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What Nebraskans In Farming Industries Should Know About Workers’ Comp

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Farming and agricultural operations don’t have to provide workers’ comp, with some notable exceptions.

Known as “The Good Life” state, Nebraska is recognized for its farming and agriculture prowess and its rich heritage. However, agriculture is also one of the most dangerous industries to work in. Nebraskans working in agricultural and farming operations must be aware that state laws generally exempt employers in those industries from providing workers’ compensation coverage to employees.

The law doesn’t paint a black and white picture, however. If you have been injured in this line of work, there are certain circumstances that do mandate workers’ compensation coverage.

For example, under the Nebraska Workers’ Compensation Act, employers engaged in an agricultural and farming operation are required to provide workers’ compensation for employees if:

• they employ 10 or more full-time employees, none of whom are family members,
• those full-time employees work on each work day for 13 weeks during the calendar year.

This includes Continue reading

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Workers' Comp' Basics, Workers' Compensation and tagged , , , .