Why injured workers stop going to the doctor even if they are still in pain

Posted on by

Jon Rehm here. I had something come up this weekend, so I didn’ t have time to edit the post I was working on for Monday. It’s about workers’ compensation and anti-trust. It should be worth the wait. It’s fun to write about a new topic.

Anyhow, the lawyers at the firm cut a video blog a few weeks back that should be up on Facebook and will soon be on You Tube and maybe in a podcast format in the near future.

In the meantime, here is an “evergreen” post from about a year ago that is still worth reading.

Some work injuries never really resolve. Often an injured worker works through pain in order to support themselves and their family. Many workers in this situation stop seeking medical treatment for their work injury – and that often causes major problems for the injured worker.

Besides the obvious health issues, there are two legal problems that arise when an injured worker gives up on medical care. The first is that it lowers their chances of getting future medical care awarded in court. Injured workers who stop seeking medical treatment for their injuries can also undermine their credibility with a judge. The assumption is that if an injured worker isn’t seeking medical treatment they really aren’t hurt and any testimony about pain or limitations lacks credibility.

But there are many good arguments to make about why injured workers’ stop seeking medical treatment.

1.Workers’ compensation stops paying medical benefits – When workers’ compensation stops paying for medical care, many injured workers can’t afford to pay for treatment.

1a. Injured workers are told their case is “closed” by an insurer or employer – Insurance adjusters and nurse case managers often tell injured workers that their case is closed when their doctor places them at maximum medical improvement or MMI. This often accompanies a check for permanent disability that many workers believe is a settlement that closes their case.

A workers’ compensation case stays open for at least two years from the last payment of benefits.  A case is only closed if it goes to trial and gets dismissed or if the injured worker signs settlement paperwork that is filed with the Nebraska Workers’ Compensation Court.

But, it’s easy to understand why an injured worker may think their case is closed and not go to the doctor in this situation. After all they have been told by an authority figure that their case is closed and they received a check for permanent disability.

Many self-insured employers in Nebraska also discourage injured workers’ from seeking medical care after the employee is released from care by a doctor.

2. Non-existent or bad health insurance – An injured worker can continue seeking medical treatment in a denied workers’ compensation case by having their health insurance pay. Some employees do just that whether it’s under their insurance or under a spouse’s insurance. Taking that action can be  helpful. But if you don’t have health insurance because it’s not offered or because you can’t afford it, that’s not an option.

High deductible and co-pay insurance can be almost as bad as no insurance. I’ve seen two employees with supposedly “good insurance” have medical bills in disputed workers’ compensation claims sent to collections. Nebraska has enacted legislation to protect injured workers from debt collectors, but an injured worker would likely need to get an attorney to enjoy the protections of that law. Often times injured worker don’t want to or are afraid to contact attorneys. Adjusters and other company health personnel will also discourage employees from calling lawyers.

3. Unable to take time off from work to go to doctor — Medical clinics tend to be open during business hours when injured workers are working. That time crunch can also be amplified by having to commute to a job.

Insurance and management side readers may say “What about FMLA?” FMLA could allow an injured employee to take time off for medical care. But some employees may not be aware of their rights under the FMLA. Employers usually also require paperwork for FMLA which requires the cooperation of a medical doctor which can create a hurdle for some employees — particularly those without a good relationship with a doctor.

Not all employees are eligible for FMLA.  Maybe their employer has fewer than 50 employees. Maybe they haven’t been employed for more than a year.  Maybe an injured worker has exhausted their FMLA leave during their work injury.  Maybe the employee hasn’t worked enough hours because of the injury to be eligible for FMLA.

As added insult to a work injury, an employee taking time off work to see medical treatment would be taking intermittent FMLA. Employers hate intermittent FMLA and often employees who use intermittent FMLA are often suspected of fraud.

Urgent care clinics and emergency rooms are available for treatment after hours. But going to an ER complaining of pain is a good way to get tagged as a drug seeker by the insurance industry.

4. Worker is alienated from treating doctors — Some employees don’t go to the doctor if they are in pain because they don’t trust or like their doctor. I will be the first to admit that some injured workers are unreasonable people. But some doctors have a lousy bedside manner. Some doctors are overly cozy with nurse case managers who work for insurers or employers. When either of those two factors are present, even a reasonable and personable injured worker may feel that treating with that doctor is futile.

I mentioned suspicions of drug seeking behavior by injured workers earlier in this post. Concerns about drug abuse by injured workers have been heightened over concerns stemming from the opioid crisis. As a result, doctors are even more reluctant to prescribe pain medication. As I pointed out in April, concerns about opioid addiction are good pretext for insurers and claims administrators to wash their hands of medical care obligations under workers’ compensation.

But if opioids and benzos are off the table for long-term pain management, what are the alternatives? Currently, there isn’t much that is widely accepted. If injured workers hear from their doctors that they can’t do anything about their long-term pain, that message will discourage an injured worker from seeking medical treatment.

Some doctors are willing to perform novel pain management techniques like stem cell therapy or prolotherapy. But since these methods are relatively new, so they aren’t widely accepted. Since novel ways to treat pain aren’t widely accepted, it’s easy for insurers and claims administrators to deny those novel treatments.

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 Nebraska, Workers' Compensation and tagged , .

What COVID-19 conspiracy-mongering tells us about causation in workers’ compensation

Posted on by

Some conspiracy theorists argued last month that COVID-19 only killed 9000 instead of 154,000 (at the time) Americans. This number was based on Centers for Disease Control (CDC) data stating that only 9,000 death certificates involving COVID-19 patients listed COVID-19 as the sole cause of death. In the majority of deaths, COVID-19 combined with other factors to cause death.

The argument about was counts as a COVID-19 death echoes arguments about what counts as a work injury for the purposes of workers’ compensation. Does work have to be the sole, substantial or just a contributing factor for an injury to be covered under workers’ compensation?

In Nebraska, the answer to that question is that work merely needs to be a contributing cause to an injury or medical condition in order for it be covered under our workers’ compensation laws. Nebraska’s relative permissive causation standards stand contrast with more stringent causation standards in neighboring states.

But even if work needs to be a substantial or but for cause of an injury or medical condition, work duties can combine with other factors to be covered under workers’ compensation. The Supreme Court’s decision outlawing workplace discrimination based on gender identity and sexual orientation contained a great discussion about causation. In that case the court found that even a but for factor, a stricter standard than contributing factor, could combine with other factors to create legal liability.

Social media hoaxes and workers’ compensation

The COVID-19 causation kerfuffle shows once again why workers are ill-served by social media conspiracy-mongering and misinformation. Employers often attempt to suppress claims by telling workers that aggravations of old injuries are not covered. Some workers also self-suppress workers’ compensation claims by  believing that aggravations of old injuries aren’t covered or that work needs to be the only reason for a work related-injury or medical condition. The idea that a condition needs to be the sole cause of an injury or death feeds that misguided line of thinking.

Causation is only part of the battle for aggravations of old injury

Nebraska law has fairly permissive causation standards work injuries. But the Nebraska Supreme Court recently signaled it could be harder for workers who have been previously compensated for work injuries to be compensated for new injuries. While the re-emergence of apportionment of permanent disability benefits is a disturbing development, it would appear apportionment doesn’t apply to temporary disability or medical benefits.

But, Nebraska also allows employers to get out of paying workers’ compensation benefits by arguing misrepresentation. The defense is based on employees concealing the effects of prior injuries, employers relying on that misrepresentation and the employee getting injured due to their alleged misrepresentation. The misrepresentation defense is usually used against employees with old injuries. And unlike apportionment, misrepresentation is an absolute defense to paying all types of benefits under the Nebraska Workers’ Compensation Act.

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 Uncategorized and tagged , , , , , .

Ghosted by your workers’ comp. insurance company?

Posted on by

The workers’ compensation insurance industry likes to talk about patient advocacy. But after a certain point in a claim, injured workers are often left hanging by insurance companies and the nurse case managers they hire to manage employee medical care.

Workers left in a lurch by insurers are often confused or ignorant about how to proceed in a claim. And surprise, surprise, insurers use this ignorance and confusion against injured workers.

Here are some common scenarios when injured workers get ghosted by insurers or nurse case managers in workers’ compensation claims.

Medical care

Employers have an affirmative and ongoing duty to offer medical care to injured workers. But what happens when a doctor, particularly, a surgeon states an employee is done with treating a work injury and employee is still in pain? Bluntly often this means that an employee stops getting treatment. But assuming an employee has the ability to get medical care outside of workers’ compensation, an employee still faces challenges.

If an employee seeks treatment for pain and that treatment is related to the injury, sometimes employers will argue that they don’t have to pay for that treatment. Nebraska Workers’ Compensation Court Rule 50 holds an employee is stuck with the doctor they chose at the beginning of the claim unless 1) the defendant denies medical care or 2) the parties agree to a change or 3) the court orders a change.

What constitutes a denial of care is a crucial question. Employers have an affirmative and ongoing duty to offer medical care to injured workers. The safest route for an employee is to ask the insurer to approve medical care. But that isn’t always possible if employees don’t have that information or adjusters don’t respond to inquiries. Insures also tend to ignore injured workers who don’t have a lawyer.

Arguably, not offering medical care is a denial of compensability, so an employee can chose to any provider doctor and have those bills paid. An ongoing and affirmative duty to offer care should mean an employer can’t get out of paying medical bills just because the stopped communicating with you about your claim. However, getting medical bills paid in that situation will probably involve hiring a lawyer and going to court. Many employees are intimidated by that process.

Why employers should offer you medical care

Employers have good reason to offer ongoing medical care. First of all, an injured worker can lose out on disability benefits if they decline medical care Neb. Rev. Stat 48-120(2)(c). By offering medical care, an employer can also maintain control over medical care. A recent case provides a good example of the protections that employers are entitled to if they offer medical care.

The Nebraska Supreme Court held in Rogers v. Jack’s Supper Club that an employer was not responsible for paying for bills incurred for treatment in Florida for an employee who moved from Nebraska to Florida. The court held so because the employee didn’t ask to formally change doctors from the court or the employer.

I think Jack’s Supper Club is a harsh result. I believe Neb. Rev. Stat. 48-120(6) gives judges broad latitude to order changes of doctors under Rule 50.  But in that case the defendant actually offered medical care to the injured employee. Arguably, the defendant in that case, met their affirmative duty to offer medical care and did not deny compensability.

Aren’t they supposed to pay me something?

While employers have a duty to offer you medical care for a work injury, their duty is less clear when it comes to paying permanent disability benefits. Again, insurers and nurse case managers tend to disappear after surgical care ends. Usually when a surgeon releases an injured worker from care they are deemed to be at maximum medical improvement or MMI.

I’ve written quite a bit about employers/insurers short change employees by ending payment of temporary disability and delaying payment of permanent disability. But that squeeze or delay presumes an employee actually gets paid permanent disability. In order to get paid disability for an injury to a specific body part, a doctor generally needs to give an impairment rating. But usually someone needs to ask for and pay for an impairment rating.

Often times insurance types just don’t ask for the impairment rating. Once they insurer gets an impairment rating, they have 30 days to pay the value of the impairment rating to an injured worker. But they don’t have a spelled out duty under Nebraska law to ask for an impairment rating the same way they have a duty to offer medical care.

I would argue the beneficent purpose of the Nebraska workers’ compensation act would give insurers a duty to ask for an impairment rating. But it might be up to the Unicameral to impose that duty on insurers.

Do I have an impairment rating for my injury?

If you had surgery, you almost certainly have an impairment rating. That impairment rating is likely worth at least a few thousand dollars of tax free money. If you have had surgery there is a reasonable possibility you will need some medical care in the future. Impairment ratings and future medical care cost insurance companies money. One reason that insurers and employers ghost injured workers is that they are hoping they won’t make additional claims or ask for payment of benefits that they are owed.

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 Uncategorized and tagged , , , , , , , .

Debates over extended unemployment mirror issues in workers’ compensation

Posted on by

Congress is still working to extend enhanced unemployment benefits in response to the COVID-19 pandemic that expired in July. I believe the debates over extending unemployment benefits parallel issues debated in the world of workers’ compensation.

Secondary gain and 70 percent

Critics of the recently expired $600 per week federal supplemental unemployment benefits argue the benefits discourage work. Insurance types also argue that workers compensation benefits discourage work. In many claims these attitudes find their way into medical records when doctors describe workers as malingering. A related concept is known as secondary gain.

White House economic adviser Larry Kudlow proposed capping unemployment benefits at 70 percent of salary. Kudlow believes this rate of payments doesn’t discourage work. It so happens that workers compensation benefits in Nebraska, and most other states, are limited to two-thirds of an employee’s average pay. So under Kudlow’s assumption, workers compensation benefits shouldn’t discourage work.

But I doubt being confronted by their own logic is going to change insurance company practices and attitudes. Insurers and self-insured will push employees to come back to work as soon as possible even if it means commuting long distances or relocating to perform meaningless work. Some employers also like to force injured workers to perform volunteer work rather than receive workers’ compensation benefits.

Supplemental unemployment and temporary partial disability

The Republican plan to cap unemployment benefits at 70 percent of wages requires states to individually calculate benefit levels for each clamant. Democrats argue this would create administrative hassles for state agencies determining unemployment benefits. Democrats argue that a flat supplemental rate is simpler to administer.

The dilemma of supplemental unemployment mirrors the dilemma of temporary partial disability or TPD. Employees are entitled to TPD when they are working for less money than they were earning before accident. TPD is meant to make up the difference between the two wage rates.

Paying temporary partial disability benefits also crates administrative hassles because it requires close cooperation between HR departments and insurance companies. Often times the difficulties of paying temporary partial disability benefits means that workers don’t receive temporary partial disability benefits.

Of course, as unemployment soars short-staffed state departments of labor have struggled to process claims and pay benefits in a timely manner. Adding more difficulty in determining unemployment benefit rates means that these delays could continue.

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 Uncategorized and tagged , , .

Anti-masking social media hoaxes undermine ADA

Posted on by

Opponents of masking requirements cite the Americans with Disabilities Act (ADA) as a reason why masking requirements are illegal. One store in Lincoln is publicizing their no mask policy on these grounds.

Legal falsehoods about mask requirements were effectively debunked by an article in USA Today. I believe, for reasons that I will explain below, that these falsehoods about the ADA undermine the protections provided by the law. But this social media legal hoax contains a few kernels of truth about the ADA.

The first kernel of truth is that requiring protective gear can violate the ADA in some circumstances. The second kernel of truth is that one-size-fits-all policies in the workplace can violate the ADA.

But looking closer at these kernels of truth can help in understanding why the overall story is false.

Protective gear and the ADA

The hoax about masks and the ADA centers in the idea that not wearing a mask is a reasonable accommodation for a disability. But in order for requiring protective gear to violate the ADA it would have to interfere with the ability to perform an essential function of your job. In an employment law context, whether gear is excessive depends on the job.

In April a federal court in Nebraska ruled requiring an evidence technician to wear full protective gear at all times to protect against mold allergies could violate the ADA. Compare that set of facts with being required to wear a surgical mask for a 15-minute visit to the grocery store. Wearing full PPE gear for eight hours is completely different than wearing a cloth surgical mask for 15 minutes.

Other courts have allowed more uncomfortable gear requirements. At the end of July, the relatively worker-friendly 6th Circuit Court of Appeals found a trucking company could require an employee to wear a CPAP mask even if there was medical evidence the mask was ineffective without violating the ADA. Again, wearing a cloth mask for 15-20 minutes is a lot less cumbersome than sleeping tied to a CPAP machine.

The ADA and blanket requirements

The ADA tends to frown on one-size-fits-all policies. I think that’s part of the reason why employers have difficulty complying with the law. The ADA requires that reasonable accommodations be made for disabled people. But a reasonable accommodation doesn’t mean a preferred accommodation. I will assume for the sake of argument that some people would be unable to wear a surgical mask because of some disability. But in the context of a retail store, a customer who couldn’t wear a mask could request delivery or curb side pick-up.

The danger of the ADA anti-mask hoax

Big business has been crying out for exemptions from legal liability since the beginning of the pandemic. This gross misconception that business will be subjected to lawsuits for requiring masks could fuel support for limiting liability related to COVID-19. While liability limitations have been mostly supported by Republicans, the fact that mostly conservative leaning anti-maskers are invoking the ADA may lead centrist Democrats to support liability limitations about the ADA.

Social media hoaxes and tort reform

Back in 2015, I wrote about how a social media hoax involving the “Rome Statute” and Facebook. The point of the post was that social media hoaxes about the law generally serve to weaken the rights of consumers and employees. The ADA anti-masking hoax is similar. It is premised on the false assumption that business is at risk for excessive litigation. Even before the COVID pandemic, business interests were screaming out to weaken the ADA. Once that belief becomes widespread, lobbyists and law makers move to undercut legal remedies for those with legitimate grievances.

Empathy for the masked

I know first-hand that wearing a mask for extended length of time is uncomfortable. I know for employees working in jobs like nursing, manufacturing, food processing and warehousing that masks are even more uncomfortable. This post is not intended to downplay your discomfort. This post is intended to explain a hoax based incorrect assumptions about an important civil rights law.

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 Uncategorized and tagged , , , , .

New decade, new recession, same old Equifax and TALX

Posted on by

Mounting unemployment claims cause distress for newly unemployed workers and create logjams for state labor departments tasked with processing and deciding unemployment claims.

But record unemployment means good times for one of America’s most hated companies – Equifax.

Equifax, TALX and unemployment

Equifax, better known for a data breach effecting 143 million in 2018, works with employers to defend unemployment claims through its TALX division. Back in 2010, when TALX was an independent company, TALX drew media scrutiny for its role in delaying and denying unemployment claims during the so-called Great Recession. Equifax bought TALX in 2012. Equifax/TALX has continued working with employers to deny unemployment claims.

Don’t get me wrong, employers have a right to defend unemployment claims. But on the occasions when employees push back against Equifax they often win. Equifax often no shows hearings. But many people just give up after a claim defended by Equifax gets denied. Competent legal representation can often help an employee get a denial of benefits reversed, but many if not most people don’t seek representation in unemployment appeals.

Justice delayed is justice denied

Fortunately, many people appeal denial of unemployment benefits. Pre COVID, the time between an appeal and a hearing was roughly four weeks. The last time I wrote about unemployment on June 22, the wait time increased from four to eight weeks between appeal and hearing. Last Friday, I filed a request for reconsideration on a dismissal where there was 12 week lag time between appeal and hearing. Claims that are denied by Equifax/TALX contribute to the backlog.

Justice delayed is justice denied, Part 2

Of the course the growing delays in unemployment appeals mirror the delays in applying for benefits and receiving benefits when approved. I think the Nebraska Appeal Tribunal, the court that hears unemployment appeals within the Nebraska Department of Labor, is doing a good job under the circumstances. The Tribunal normally operates under streamlined procedures where telephonic hearings have been the norm since at least when I started practicing in 2005. I believe the Tribunal is thinking outside the box to fairly manager its case load. If the Appeal Tribunal was less efficient, things would be much worse for unemployed workers.

But the state of Nebraska needs to invest in improving the infrastructure for unemployment claims. The Legislature also needs to look in to cracking down on TALX/Equifax next session.

TALX is another example of the problems created by companies outsourcing human resource decisions. FMLA leave is often tied to private disability policies. This link between leave and disability insurance which creates all sorts of hassles for employees when medical personnel, human resources departments and insurers fail to communicate. Maybe a new Secretary of Labor will scrutinize the problems caused by outsourced HR functions. I hope Congress will focus on theses issues as well.

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 Uncategorized and tagged , , , , , .

Did it get easier for employers to dodge workers’ compensation in Nebraska?

Posted on by

A recent Nebraska Supreme Court decision, Abotyes-Mosqueda v. LFA, made it harder for some workers to claim workers compensation benefits and easier for employers to classify workers as independent contractors.

Statutory employer

In this case the plaintiff attempted to join LFA as his statutory employer. A statutory employer is a contractor who works with a subcontractor in order to avoid liability under the Nebraska Workers Compensation Act. LFA subcontracted with Ismail Huerta who recruited a crew that included in the plaintiff. Huerta did not have workers compensation insurance. When plaintiff was hurt, he claimed workers compensation against LFA. 

In his favor, plaintiff had evidence showing that after the injury LFA required Huerta to obtain workers’ compensation insurance. That would point towards LFA being a statutory employer.

But the court found that the plaintiff could only join LFA as a statutory employer if he was an employee of Huerta. The court found he was not actually employed by Huerta. The court used a 10 factor test to determine that plaintiff was an independent contractor.

I would note that the court merely went through the traditional 10 factor test rather than look to the economic reality of the relationship between Huerta and the plaintiff. Nebraska appellate courts have traditionally done that analysis. I am not sure if that would have made a difference in this case, but I wish the court would have asked and answered that question.

The ABC Test

The question of whether the plaintiff was an employee likely would have come down differently if the ABC test was applied. In the ABC test a worker is an employee unless: they are 1) free from control of work both under contract and in fact 2) service is outside of normal course of business and 3) the workers is customarily engaged in a trade, occupation, profession or business. The ABC test applies to unemployment benefits in Nebraska.

But there is another distinction between how employees are classified under Nebraska workers’ compensation and unemployment law.

Burden of Proof

Under the Nebraska Employment Security Act (unemployment) the employer has the burden to show they meet the ABC test. But the Nebraska Supreme Court held in this case, that it is the employee who has the burden to prove the employment relationship. The court made a very general citation to the act in support of this proposition. However employees do have the burden of proof to show they were injured arising out of and in the course and scope of employment. It will probably require legislation to shift the burden of proof on employment status onto employers in workers’ compensation cases.

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 Uncategorized and tagged , , , , .

Who is this nurse case manager and why are they talking to doctor about my workers’ comp. case?

Posted on by

Work injuries create many problems; pain and loss of function from the injury, medical bills, lost wages and fear of employer-retaliation to name a few. But today I want to post about another hassle that comes with a work injury:

Nurse case managers.

Nurse case managers are nurses from the insurance company or workers’ compensation claims administrators who attempt to “manage” medical care for injured workers. While nurse case managers talk about “patient advocacy”, they work for the insurer or claims administrator. From what I can tell, their version of “patient advocacy” is to talk doctors into releasing injured workers from care without restrictions and without future medical care.

Nebraska courts hold that nurse case management services benefit employers. So why does Nebraska allow nurse case managers to run amok, while other states strictly regulate them? Nebraska’s state constitution and our state’s workers compensation rules explain why nurse case managers can get away with violating the privacy of injured workers.

The right to privacy under state constitutions

Nebraska does not recognize a right to privacy in our state constitution.  Montana and Illinois recognize a right to privacy in their state constitutions. That right to privacy under those state constitutions is part of the reason why nurse case managers on a tight leash in those states. Courts in those states have ruled that injured workers have a strong privacy interest in their medical records and laws that impair that privacy should be subject to strict scrutiny.

But it’s not just nurse case managers who try to interfere with the doctor-injured worker relationship In Nebraska attorneys for employers and insurance companies often to talk to the doctors of injured workers.  These conversations are usually had for the purpose of getting doctors to change their mind about their opinions in the case. Since these lawyers are representing an insurance company who pays their bills, most doctors are willing to speak with these attorneys. (It’s a different story for lawyers who represent injured workers in workers compensation cases.)

Like defense attorneys, nurse case managers are a representative of the insurance company/employer. They have a right to communicate with medical providers under Nebraska law. And again, the nurse case managers have some leverage over medical providers. They may also develop professional relationships with providers that can help their work.

Will Nebraska amend our state constitution to guarantee a right to privacy? The right to privacy is often used to support abortion rights, so any effort to amend our state constitution to allow for a right to privacy would likely be opposed by anti-abortion activists who are influential in Nebraska.

Why the Rules of Discovery undermine privacy

But even if Nebraska had a right to privacy in our state constitution, Nebraska would either need to pass legislation and or change the workers’ compensation court rules to regulate nurse case managers. I’m not sure that would be feasible without some other changes to rules within the Nebraska Workers’ Compensation Court.

The rules of civil discovery apply within the Nebraska Workers’ Compensation Court. Those rules give employers and insurance companies broad leeway to pry into the medical history of injured workers. States like Illinois adjudicate workers’ compensation claims as administrative claims. In administrative systems employers have more restricted access to an injured workers’ health history.

Fighting back against nurse case managers

While Nebraska law permits the use of nurse case managers, Nebraska law can be used against nurse case manager. Many attorneys in Nebraska believe that nurse case manager notes are discoverable. Those notes often reveal admissions that help injured workers.

Our firm routinely tells nurse case managers not to have contact with our clients. Sometimes that means nurse case managers will stay out of examination rooms. I have used the discovery rules against nurse case managers on the issue of when they knew about permanent impairment for the purposes of penalties under Neb. Rev. Stat. 48-125. I think it’s fair to inquire about any licensing issues a nurse case manager may have had through discovery. I think its also fair to impeach a nurse case manager with evidence of licensing issues on cross-examination.

Final thoughts on nurse case managers

Overall, Nebraska has good workers’ compensation laws – particularly in comparison with neighboring states. But, Nebraska law is less favorable than other states when it comes to nurse case managers. If one gets involved in your workers’ compensation case, it might be a good idea to call a lawyer.

(Credit to Mark Perper and Tom Murphy for sharing Illinois and Montana claw on this issue on the WILG listserv)

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 Uncategorized, Workers Compensation and tagged , , , .