Tag Archives: Nebraska

Deadline for ACA Sign Up Is Monday

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Monday, March 31, is the deadline to enroll for coverage this year through the Affordable Care Act’s process. There’s a lot of information out there, and it can be extremely overwhelming. For procrastinators, here are some good places to start, hopefully help to beat the deadline, and most importantly, enroll in insurance coverage.

A starting place is healthcare.gov. Be sure to use the .gov, as other places (.com, .net, etc.) aren’t actually the insurance exchange and at worst, can be scams. From there, if things get confusing, as insurance often does, another option is to call 800-318-2596 for help, according to healthcare.gov. Or, by clicking on “Find local help” and providing a zip code, there are more direct ways to get ahold of someone and ask questions.

The site itself answers such questions as what kind of coverage a person qualifies for when the marketplace application is filled out. Unfortunately, Nebraska is one of the states that has chosen to not expand Medicaid, so clicking on the link about what Medicaid expansion means will help explain how this affect people. However, many folks are qualifying for subsidies, which are automatically applied to specific plans, often the silver level, and help people afford more comprehensive coverage, with the subsidies based on income. Note that the one-page guide recommends applying either online or by phone, as a paper application won’t be processed quick enough to meet Monday’s deadline.

Here’s an example of how the ACA affects people in one industry that the firm works with through the website www.truckerlawyers.com. The Smiths, who are strong advocates for drivers, recently had both a blog post and a podcast about options for truckers, so follow the links to explore those resources. This information also generally applies to those who aren’t truckers, too.

Why should a person go to the effort? Because there are actually financial and societal benefits to having health insurance, especially if something happens and a person has medical needs.

An editorial in the Kansas City Star recently argued a number of points about the wisdom of having insurance coverage. As has been mentioned before in this blog, folks having health insurance coverage benefits more than just the individual.

“You’ll be pulling your weight. Americans pick up the costs of caring for uninsured patients in the form of higher insurance premiums, higher taxes and more expensive care.”

Just as it’s important for employers to have workers’ compensation insurance coverage, individuals – and their families – should have health insurance to try to plan for the unknown.

Facebook Pictures’ Use Evolving in Workers’ Compensation Cases

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In the past, I have warned about the possible pitfalls of social media on a workers’ compensation claim.

However, the Nebraska Workers’ Compensation Court has never really ruled on Facebook in the context of discovery matters in a work comp claim, meaning how much access can your employer have to your Facebook account if you file a workers’ compensation claim? 

Recently, however, the Nebraska Workers’ Compensation Court (at least one judge) has taken the position that in order for your employer to gain access to photographs from your Facebook profile, it must “make a showing of the necessary factual predicate underlying [the] broad request for access.” In other words, your employer must have a decent reason to suspect that a certain photograph or something from your Facebook account has the potential to be relevant to the work comp case before the court will simply grant full access to your Facebook account to your employer.

Therefore, depending on your situation, your Facebook may be safe from your employer to some degree. However, this is a cautionary tale to remind you that even though your employer cannot simply have blanket access to all of your Facebook photos – at least according to one Nebraska judge – it does not mean that your Facebook photos or posts are necessarily safe from your employer gaining access to them at some point during your work comp case. I think the judge in this case takes a step in right direction, but you still must be aware that anything you put on Facebook may be subject to discovery (i.e., your employer may still possibly get access to it) at some point in the future.

Contact a Workers’ Compensation Lawyer, Even if Your Medical Bills Are Being Paid: Here’s Why

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Nebraska is a state that has a “prompt payment rule” for medical expenses in workers’ compensation cases. This means that so long as your employer has sufficient knowledge that your medical care is necessary because of the injury, your bills should be paid. This is a huge plus because even a minor workers’ compensation injury can cause an employee to rack up thousands of dollars in medical bills.

In Nebraska, delay of medical payment is treated as a denial of a claim. That is why a delay in paying for medical bills from a work injury gives the employee the right to pick their own doctor for a work injury.

The issue of doctor choice brings up a couple of the hidden dangers of the prompt payment rule.  Many times, employers will promptly pay medical expenses for doctors who will oftentimes release employees before they are done healing and return employees back to work before they are ready. Employees need to be able to know their doctor-choice rights before they agree to an employer/insurer-oriented clinic or doctor – especially if that doctor is not their family doctor.

Secondly, employees can get lulled into contentment when an employer pays their medical bills. Medical benefits are one aspect of workers’ compensation benefits; the other is loss of income benefits. An employer/insurer may use their leverage with a doctor to minimize loss of income benefits. Also, when employees get into litigation, they are oftentimes confused by the fact that an employer will pay for medical benefits, but not loss of income benefits, or will deny that the injury is even work related. This is related to the prompt payment rule. Just because an employer pays medical bills, that doesn’t necessarily mean that they or a workers’ compensation judge will believe those medical bills are related to the work accident.

Offered Severance? Questions for Hurt Workers to Ask

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Getting hurt at work and getting fired are two of the most stressful occurrences for an employee. Oftentimes, these stressors are combined when an injured worker receives a severance agreement. This article provides five questions an injured worker who gets a severance agreement should ask:

  1. Does signing a severance agreement settle your workers’ compensation claim? Connecticut courts recently ruled that a severance agreement does not release a workers compensation claim. However, Florida courts have held the opposite. My state of Nebraska generally does not allow workers’ comp claims to be released in severance agreements. Consult with a lawyer in your state to get a good answer. Most lawyers who do workers’ compensation work on a contingent fee basis are generally happy to spend a reasonable amount of time answering questions from injured workers faced with a severance agreement. Don’t let fear of cost deter you from contacting a lawyer.
  2. What does your state’s workers’ compensation act cover? Some workers’ compensation statutes, like Ohio and Texas, also cover retaliatory discharge cases. My state of Nebraska makes wrongful discharge a separate civil claim. The consequence of that for injured workers in Nebraska and other states with so-called “common law” retaliatory discharge causes of action: a severance agreement would close out that case along with most other claims under fair employment statutes like the ADA, FMLA and Title VII. If you are in a state where retaliatory discharge is covered under your workers’ comp statute, then that case may not be released in a severance agreement in a comp claim if your state doesn’t allow comp claims to be settled in severance agreements.
  3. What are your chances for receiving unemployment benefits?  Finding out your chances of receiving unemployment is critical – again, especially if you are forced to choose between severance and workers’ compensation. The key questions to ask for eligibility for unemployment are 1) whether you earned enough wages to be covered 2) whether you quit without good cause or were fired for misconduct and 3) whether you are able and available for work. Of course, if you have an ongoing workers’ compensation claim, the fourth question is how receiving unemployment would affect your workers’ compensation claim. If you chose to negotiate your severance agreement, either by yourself or with a lawyer, try to include a provision where the employer chooses not to oppose your application for unemployment benefits.
  4. Do you get benefits like vacation pay, even if you don’t sign a severance agreement? In some states, including my state of Nebraska, an employee should receive vacation pay or paid time off regardless of whether they sign a severance agreement or not. Again, if you live in a state where an employer can release a workers’ compensation claim through a severance agreement, your eligibility for vacation pay along with unemployment benefits should help you decide whether it make sense for you economically to pursue your workers’ compensation claim if you have to pick between severance and workers’ compensation. This also holds true for severance agreements in general if you an employer is asking to you to release a strong fair-employment claim for a low-ball severance amount.
  5. Did you contact a lawyer who is knowledgeable about workers’ compensation? This is a critical period and critical especially if you live in a state where comp claims can be released by severance agreements. An experienced workers’ comp lawyer can value your comp claim. Some ways to evaluate whether a workers’ compensation lawyer is knowledge is to check whether they are a member of the Workers’ Injury Law & Advocacy Group (WILG). Another is to see if you can search them on your state’s workers’ compensation court website or through free legal research services like FindLaw and Google Scholar. A knowledgeable workers’ compensation lawyer in your state should also be able questions 1-4.

Can I Collect Unemployment if I Have a Workers’ Compensation Case?

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Injured workers are often forced to navigate the tricky waters of unemployment when they have a workers’ compensation claim. Not understanding how the two sets of laws interact can lead injured workers to trouble in unemployment and workers’ compensation for people who can ill afford the trouble. Here are some answers that Nebraska workers applying for unemployment after a work injury would want to know.

  1. When can you receive both workers’ compensation benefits and unemployment at the same time?Nebraska law allows you to collect workers’ compensation benefits and unemployment benefits at the same time only if your rate of weekly work comp benefit is worth less than your weekly unemployment. In that case, you collect your full workers’ compensation benefit, and unemployment pays the difference between your comp check and the unemployment benefits check. The advantage to the worker in this scenario is that the workers’ compensation is not subject to tax, while the unemployment benefits are taxable.Unemployment and workers’ compensation benefits rates are set under different formulas. You might fall into this category if you were injured shortly after starting a lower-paying job but had previously earned higher wages for a length of time at your previous job.However, if you do receive workers’ compensation benefits that are higher than your unemployment benefits, you cannot collect unemployment benefits.
  2. Won’t I “hurt” my workers’ compensation case if I have received unemployment benefits?There used to be some truth to concerns of unemployment benefits reducing the amount an employer has to pay on a workers’ compensation case. However, those concerns have temporarily been eliminated by the recent case of Hernandez v. JBS, found at this link: http://www.supremecourt.ne.gov/sites/supremecourt.ne.gov/files/coa/opinions/a12-435.pdf. In Hernandez, the Nebraska Court of Appeals overruled a Nebraska Workers’ Compensation Court judge who reduced the temporary total disability (TTD) pay awarded to a worker, who was fired by JBS, by the amount he received in unemployment.I believe the Nebraska Court of Appeals used sound reasoning to make their ruling in Hernandez.  However, the Nebraska Supreme Court has the ability to overturn the Nebraska Court of Appeals. Also, the Nebraska Legislature has the ability to rewrite Nebraska workers’ compensation and/or unemployment laws to overturn Hernandez.I would expect efforts to overturn Hernandez will be made in the courts and Legislature. My guess is the argument for overturning Hernandez will be that injured workers are receiving a “windfall” by receiving workers’ compensation on top of unemployment.

    This argument is nonsense. First of all, if a worker receives work comp benefits and unemployment, judges with the Nebraska Department of Labor and the Nebraska Workers’ Compensation Court have likely both found that the employee was not at fault for being terminated. Second, if a worker who cannot work because of a work injury is forced to apply for unemployment because he or she isn’t receiving workers’ compensation, there is a good chance that the employer either concocted a reason to fire the employee or forced the injured worker to do a job that she or he was unable to do.

Workers’ Compensation Bills Scheduled for Monday Hearings

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The Nebraska Legislature

In this, the 100th year of workers’ compensation in Nebraska, I write a lot while the Legislature’s in session about how we advocate for workers. Now it’s time for Nebraskans to get involved in the lawmaking process to protect workers’ rights.

Two bills, LB 307 and LB 584, are scheduled for hearings in the Business and Labor Committee at 1:30 p.m. on Monday, Mar. 18, in the Nebraska Legislature’s Room 2102. These bills could gut the protections workers get through the workers’ compensation system in Nebraska, including taking the choice of doctor away from workers. The bills would also take many decisions out of the realm of the doctor-patient relationship, local control, and even the state’s control, and hand those decisions to workers’ employers, insurance interests, and private companies that are focused more on making money than ensuring workers’ health and safety. A bill similar to LB 584 promoting evidence-based medicine fortunately did not get out of committee last year.

To educate folks more on some of the bills before the Legislature that affect workers and also see the perspectives the firm has to advocate for workers, please read these blog posts:

Help lawmakers hear your voice by getting involved and being vigilant! Call, email, or write your senator to share your personal story and how these bills affect real people. These links may be useful for contacting senators: Find Your Senator, Senators’ Web Pages, Senator Roster, and Business and Labor Committee. Members of the Business and Labor Committee include Sen. Steve Lathrop (District 12), Chairperson, Sen. Brad Ashford (District 20), Sen. Ernie Chambers (District 11), Sen. Thomas Hansen (District 42), Sen. Burke Harr (District 8), Sen. Amanda McGill (District 26), and Sen. Norman Wallman (District 30).

Because citizens’ involvement and interest in workers’ protections matter. Hearing from workers affects how our senators vote. So don’t take programs like workers’ compensation for granted – stand up, get involved, and be heard!

Are Big Business and Big Insurance Making Nebraska Doctors Scapegoats?

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New legislation has been proposed to reduce the quality of medical care for workers under the guise of reducing costs

Evidence-based medicine and utilization review (EBM/UR) of medical care for workers’ compensation are currently being pushed by big business and big insurance interests.

We are facing such legislation in Nebraska this year.

One reason supporters of this way to control medical care for workers give seems to be that medical care currently provided is “inefficient.”

This is a euphemism for medical costs are too high. I view this as critical of physicians and other health-care providers who are taking care of injured workers. The Florida Medical Association (FMA) has recently responded to this type of criticism of the medical profession. In their case, the Office of Insurance Regulation (OIR) and National Council on Compensation Insurance (NCCI) say workers’ comp rates are being raised because drugs are dispensed directly by doctors. But an OIR report, according to the article linked below, “shows virtually no difference in the cost of such drugs whether dispensed by doctors or pharmacies,” so the FMA disagrees with blaming their doctors for rate increases.

This quote is from the story linked to above: “The truth is that the NCCI and carriers have used physician dispensing as a scapegoat for hundreds of millions of dollars in rate increases when other medical costs have been the real cost drivers in workers’ compensation,” the group charged. “The numbers are fabricated in an attempt to eliminate doctor dispensing.”

2013: Centennial Year for Workers’ Compensation in Nebraska

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100 Years of Nebraska Workers’ Compensation

The year 2013 will mark 100 years of workers’ compensation law in Nebraska. This state was a leader in adopting the new protections and benefits for workers. The first workers’ compensation laws in the United States were enacted two years earlier, and few states had followed by 1913. Workers’ compensation laws were hailed as social progress, if not outright human-rights triumphs. Nebraska was a leader in protecting workers’ rights. Much has changed since then.

 

The current workplace is not the workplace that existed 100 years ago. The jobs then were much more physically demanding and dangerous. The injuries and diseases are not the same. Repetitive-motion injury was not contemplated or compensated. Cancer from industrial solvents was not contemplated or compensated. Mental disease was stigmatized by society and essentially not compensated. Medical practice was less specialized, and treatment options were much more limited.

 

Interested parties have long been working to keep the law in sync with the times. The law has changed from time to time, but some of the bedrock concepts, such as requiring “accident” have resulted in some rules that lawyers call legal fictions, for instance. Medical benefits that experts consider the most basic protection are the most costly part of the system, and cost increases are an area of constant concerns.

 

Competing legislation is presented each year with incremental changes resulting. The last major revisions happened 20 years ago. The annual arguments sometimes get heated, but the law seems to advance. The big picture is something we can be proud of.

 

Nebraska law has the highest rating of any state under presidential-commission guidelines established in 1972. Premiums and costs are in the mid-range of the states, as are worker benefits. Nebraska is rated as the 2nd-best state legal climate by the U.S. Chamber of Commerce. Nebraska is one of few states that has robust vocational rehabilitation benefits for injured workers. Hopefully we can continue working together to maintain and improve Nebraska’s workers’ compensation law in ways that benefit all of the competing interests.

 

Bottom-line conclusion: Nebraska law is doing well for a centenarian. Let’s keep cooperating to ensure progress.