Don’t bet on workplace safety

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Decent people reacted with shock and disgust to news of allegations that managers at a Tyson meatpacking plant in Waterloo, Iowa were making bets about the number of workers who would catch COVID-19.

The allegations were included in a wrongful death claim filed by the family of a worker who allegedly died from COVID exposure at the plant. Iowa allows workers to get around the limited compensation available under workers’ compensation if the employee can prove their injury was caused by the gross negligence of another employee.

If true, managers betting on employee COVID-19 exposure would likely be evidence of gross negligence. So besides another example of man’s inhumanity to man, what does the COVID-19 betting pool tell us about workers’ compensation and workplace safety?

Good alternatives to the exclusive remedy of workers’ compensation

Iowa is fairly unique in allowing for negligence suits for work injuries. In Nebraska, and most other states, workers compensation is the only way that employees can be compensated for a work injury.  Lawyers and judges use the term the terms “exclusive remedy rule” or just “exclusive remedy” to describe workers’ compensation laws  The so-called grand bargain of workers’ compensation is that workers don’t need to prove negligence by their employer to be compensated for a work injury. In exchange they receive limited benefits.

But workers’ compensation has proven largely inadequate to COVID-19 due to difficulties in linking COVID-19 exposure to the workplace. While some cases are being prosecuted by employees they are hard cases to win that are only feasible in cases of death or serious injury.  Benefits in death cases also rely on proving a formal marriage relationship and or evidence of supporting dependents. Not all injured workers fall into that category.

Worse, the exclusive remedy rule has largely ruled out legal workarounds to the exclusive remedy rule.

However, Iowa’s allowance of tort cases, with higher potential payouts in cases of work injuries and deaths from COVID seems like the best way for seriously injured workers and their families to hold employers accountable. And bluntly, it’s not that great of an option.

Some readers may ask, isn’t OSHA, Occupational Safety and Health Administration, supposed to regulate workplace safety? If workplaces were safe there wouldn’t be a need for lawsuits. But OSHA sidelined itself early in pandemic

How OSHA sidelined itself in the pandemic

In April, OSHA announced it would not enforce record keeping requirements for COVID-19 for employers such as packinghouses. I believe that this sent a signal that OSHA wouldn’t take the pandemic seriously. OSHA later reversed the policy and even issued a few citations. But OSHA’s slowness to respond to COVID-19 cost lives both on the job and in the communities around COVID-19 hotspot workplaces.

OSHA continues to refuse to specific rules about workplace safety and COVID. Sure, once the Biden administration finally takes over and gets going, OSHA might issue some standards. But even in a Democratic administration, the Department of Agriculture, who also regulates meatpacking plant may seek to weaken workplace safety measures implemented by the Department of Labor. For example, while the Department of Labor did some innovative enforcement of meat processing plants in the Obama administration, the Department of Agriculture allowed some packers to speed up processing lines. Faster lines correlate with more injuries.

Why local media is matters in covering workplace safety, part 2

The story about the COVID pool at Tyson was broke by a local journalism outlet in Iowa. This is the second straight week, I’m writing about a workers’ compensation issue first reported on by local reporters. Local reporters are essential in covering workers’ compensation because workers’ compensation is a state law. Also, many unsafe workplaces exist well outside journalist-rich cities like New York City and Washington DC. It’s important to have good reporters in places like Iowa and Nebraska to tell the stories of workers there.

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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Why local media matters to workers’ compensation and workplace safety

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A story in the Seattle Times about injury rates at Amazon fulfillment centers shows how a state workers’ compensation agency and enterprising local reporters can focus attention on workers compensation.

Seattle Times reporter Benjamin Romano reported that injury rates at Amazon fulfillment centers had increased nearly four-fold over 4 years from 4 per 100 to 15 per 100 employees. Romano’s reporting was based on a public report from the State of Washington’s Labor and Industry, L & I, department which administers and regulates workers’ compensation in Washington state. L& I sets workers compensation rates in Washington State.  Per the Seattle Times, Amazon warehouses will pay a higher rate for workers’ compensation than meatpacking plants in that state.

Workers’ compensation laws are state laws. Washington state is fairly unique in having a state-run workers’ compensation system. Nebraska allows employers to obtain private workers’ compensation coverage.

So, as Amazon expands in Nebraska, what leverage will the Nebraska Workers’ Compensation Court have over Amazon?

First of all, for now, First Reports of Injury, are public records. Any interested party can look at those reports. But of course those reports don’t always correlate with an injury and they are based on what an employer reports.

Major employers with high injury rates also like to self-insure. The Nebraska Workers Compensation Court must approve applications to self-insure on an annual basis. Amazon being denied the ability to self-insure or losing the ability to self-insure would be a newsworthy event. However many high-injury employers avoid the scrutiny of self-insurance by insuring with high deductible plans.

But if a tree falls in a forest and no one is there to hear it, does it really make a sound? I bring up this old question to discuss the gradual disappearance of local journalism. If news happens, but there are no reporters to cover it does news exist?.  Lee Enterprises has made Nebraska a one newspaper state. Lee has nearly halved the number of reporters at Omaha World-Herald in the last two years. Any long time readers of the Lincoln Journal-Star or Omaha World-Herald know from first-hand experience how the news content in those papers has thinned out over the years.

Why does the decline of local media effect workplace safety.  In the Obama administration, OSHA began a policy known as “regulation by shaming” or publicizing fines against companies who violated workplace safety rules. A study by an economist at Duke University found one press release by OSHA had the same effect as 210 inspections. But if there isn’t a strong local media to report on and amplify these stories, then the regulation by shaming strategy loses effectiveness.

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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Unhappy holidays for voluntold light duty injured workers

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Christmas music started playing last week. Another familiar holiday sound started last week — holiday bell ringing by The Salvation Army. But many bell ringers may be injured workers who are being forced to volunteer at a “light duty” assignment.

Nothing under Nebraska law prohibits companies from assigning their injured workers to work for non-profits. In fact, a small industry has cropped up that matches injured workers with non-profits. Of course, that industry and apologists for workers’ compensation insurance industry call this practice a win-win for everyone. I think the benefits of forced volunteer or voluntold work don’t hold up under closer examination. But workers faced with a voluntold assignment face at least two problems:

Two bosses

Injured workers who are voluntold to do volunteer work are paid by their employers. Since the employers are paying them they have to answer to their employers. Workers are also accountable to onsite supervisors for the non-profit. Two bosses leads to communication problems and that often leads to problems for injured workers — who in practical terms are often already on thin ice with many employers for filing a workers’ compensation claim.

Different hazards

When a worker returns to work in a light duty job, there is a good chance that a supervisor has some idea about the employees work restrictions. That’s less likely when dealing with a new employer.

Some so-called light duty jobs aren’t always light. Some injured workers get temporarily assigned to work at Goodwill Stores. However most retail work requires a 50-pound lifting ability along with extended standing. Bell ringing usually requires long-term standing. And while insurance side thought leaders like to use terms like “resilience”, they have cushy indoor jobs. Trying standing outside on a cold December day in Nebraska for eight hours being forced to volunteer. This is never a pleasant prospect and it’s certainly more risky as the COVID pandemic extends into month eight in the United States.

Win-Win or Win-Lose?

The insurance industry touts the well-being benefits of volunteer to work to injured workers. But on closer look these benefits, nebulous as they are, are mostly backed by anecdotal evidence. But even if you take the benefits of corporate volunteering at face value, a lot of those benefits come through so-called VTO or volunteer time off programs. In those programs, companies have employees take time off for community projects or pay employees to volunteer for organizations they care about.  That’s a whole other situation from telling an injured worker to go out in the cold and raining bells for the Salvation Army 40 hours a week or they will get fired while they still recovering from an injury.

But while then benefits of voluntold jobs are dubious at best to workers, businesses who voluntold their workers get a nice some nice PR.

Why can’t workers just collect TTD and volunteer on their own?

Why can’t workers just volunteer for an organization they like and collect TTD? Many workers are rightly concerned that employers are surveilling them. But even if a worker isn’t under surveillance, employers and their insurance companies fundamentally like to control their employees — including and especially their injured workers. Employers want to control which doctors you see and what kind of care you get from your doctor through the use of nurse case managers.

But even if an employee manages to get proper medical care for a work injury, some employers aren’t content to let their workers stay home for a few months while they get healed. Employment at-will gives employers all sorts of leverage over their employees. Voluntold programs are just one example of how this power dynamic plays out.

Things work differently when a collective bargaining agreement is in place. Unions sometimes negotiate their own return to work programs. But I’ve seen insurance companies and their vendors ignore these agreements and try to force union members into voluntold jobs.

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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“Wildcat strikes”, workplace safety and public sector workers

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The Lincoln Education Association (LEA), the union that represents teachers at Lincoln Public Schools, moved quickly and clearly to discourage a rumored mass sick out by teachers in Lincoln late last month. The sick out was meant to protest working conditions related to the COVID-19 pandemic.

Walking off-the-job in mass or mass call-ins without union approval or without a union period is sometimes known as a “wildcat strike.” But while the LEA was correct in stating a coordinated sick out by teachers is illegal in Nebraska, most private sector employees have the right to walk off the job due to safety conditions under certain circumstances.

When are wildcat strikes permissible?

Wildcat strikes are permissible under the National Labor Relations Act, the Labor Management Relations Act and Occupational Health and Safety Act. While the standards for what is permissible vary by law, a worker contemplating organizing a mass walkout should be able to show a serious and imminent harm from working conditions. Employees in unionized workplaces actually may have less ability to organize wildcat strikes as labor law discourages that practice in unionized workplaces.

Individual refusal to do an unsafe job

The Nebraska Fair Employment Practices Act could protect an individual employee from retaliation for refusing unsafe work or opposing unsafe working conditions. Arguably, the act would also protect organizers of wildcat strikes. In some cases, reporting a workers’ compensation injury can also fall within the Nebraska Fair Employment Practices Act. While workers also common law protections against workers’ compensation retaliation, bringing the case under the Nebraska Fair Employment Practices Act can entitle workers to awards of attorney fees and front pay not available in common law cases

The spread of strikes and sickouts

Mike Elk of Payday Report has written extensively about strikes and other work stoppages related to COVID-19. One of these labor actions includes a sick out by teachers in Boise, Idaho. Unfortunately, workers don’t have a lot of good options to protect themselves from unsafe conditions related to COVID-19. OSHA has been criticized for lax enforcement. Workers’ compensation laws aren’t designed to compensate workers for infectious diseases, even assuming those laws cover infectious disease at all. Finally, even though workers’ compensation is an inadequate remedy for COVID-19, the so-called exclusive remedy of workers’ compensation usually prevents workers from bringing cases directly against their employers about working conditions.

If you have a union, get involved in your union

Some workers are still fortunate enough to enjoy union representation. If you are one of those workers, join your union and get involved in your union. Unions make the workplace more democratic and allow for employee input, but unions work best when workers get involved. One of my pet peeves is listening to clients or potential clients telling me “the union doesn’t do anything.” Some unions are better than others, but even a weak union gives most employees better benefits and more job protections than they would be entitled to otherwise as an at-will employee.

Public sector labor law reform in Nebraska?

Public sector employees cannot strike in Nebraska. Nebraska law is clear on that issue unlike more ambiguous laws in West Virginia, Oklahoma and Arizona that had teacher strikes in 2018.  Nebraska law also holds teachers and other employees can’t engage in work slow downs or sickouts. In fact it is a crime to even advocate or advise public sector employees on workplace strikes and slowdowns and to support strike funds. While Nebraska laws on public sector strikes may be vulnerable to some First Amendment challenges, public sector strikes and work slowdowns remain a very risky proposition for participants.

So will Nebraska reform public sector labor law to harmonize with federal law or to make it less punitive towards public sector workers protesting unsafe working conditions? I think that’s a doubtful proposition. The rules of the Nebraska Unicameral require broad support for legislation. For example, expanded protections for essential workers were killed by what amounts to a filibuster by a bloc of right-wing senators.

Nebraska is also one of the few states that hasn’t adopted charter schools which are opposed by teachers’ unions. I’m not sure that the Nebraska State Education Association, the union representing teachers in Nebraska, would want to risk alienating support for public schools with proposals that could seem radical to many Nebraskans, including teachers.

But ultimately increased labor militancy among teachers and other public sector workers could help preserve the role of bargaining for public sector employees. In 2011, some in the business community sought to weaken public sector unions. That effort ultimately failed. I think a newly energized labor movement among teachers makes it more likely that future efforts to weaken public sector unions in Nebraska will fail 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.

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The problems posed by mandatory workplace stretching and exercise

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Many white-collar employees exercise at the beginning of the day before going to work. But many blue-collar workers are required by their employers to exercise or stretch at the beginning of their shifts.

In my view, required workplace stretching or exercises creates many issues in workers’ compensation and employment law.

Hurt while stretching at work

If a worker is injured while doing employer-mandated exercises, that injury would be covered by workers compensation. The deeper issue about employer-mandated stretching and exercise is why employers mandate it in the first place. Stretching is thought to reduce the risk of musculoskeletal injuries which would be covered by workers’ compensation. But research is not entirely clear as to whether stretching  reduces the risk of injury in the workplace.



Workplace stretching, ergonomics and wellness programs

Advocates of workplace stretching state that stretching is just one part of injury prevention. Employers also need to focus on ergonomics and other preventative measures in order to prevent injury. But, ICYMI, employers are not required by law to implement ergonomics programs. In fact, OSHA is prohibited by law from even considering mandatory ergonomics thanks to the Congressional Review Act.

Workplace stretching supporters also support employers using early intervention to address musculoskeletal injuries. But many employers don’t follow the advice offered on workplace wellness blogs. I have many clients, particularly in the livestock and meatpacking industries, that complain about soreness from overuse injuries. The response is often less than supportive from management. They are told that pain is just part of the job.

Workplace exercise and stretching and the ADA

Workplace exercise programs raise an immediate concern for workers with physical disabilities. Sometimes disabled workers are unable to complete stretches or exercises because of their disability. A refusal of to do these stretches could be construed as a refusal of work duties, so employees may feel pressured to complete the exercises and risk injury.

In my opinion, the best practice for an employee faced with this situation would be to get a medical note excusing them from exercises or stretches or allowing a modification. In other words, an employee needs to attempt to seek a reasonable accommodation for their disability under the Americans with Disabilities Act. (ADA)

Sometimes employees can’t afford to go the doctor or can’t easily access medical care. I think an employee can still ask for an accommodation based off old restrictions or even on their own.  But to be blunt, employers don’t always take self-reported restrictions seriously. That is often the case with courts as well if those self-reported restrictions lack basis in the medical records.

In short, it may be difficult for an employee to avoid being fired for refusing to perform mandatory exercises or stretching. But if push comes to proverbial shove in litigation, an employer may be in a tough spot if they fire an employee for refusing to do exercises. Disability discrimination laws protect qualified employees who can perform the essential function of their job with or without accommodation. Arguably stretches or exercises would not be an essential function of a job.  This could be particularly true of an employee is able to do their job and or if the stretches have little to do with an employee’s job duties.

But litigation is time consuming and expensive. So an employee who is forced to do stretches that aggravate an old injury or health condition should try to work with a doctor and employer, if possible, to either get excused from the exercises or to get the exercises modified.

The ADA and wellness programs

The legal issues posed by mandatory stretching for injured and disabled employees reflects a more generalized concern about wellness programs under the ADA. Federal courts partially struck down an EEOC regulation about wellness programs as they discriminated against older and disabled workers. And like mandatory exercise and stretching, studies are inconclusive as to whether wellness programs benefit employees.

The presidential election and confirmation hearings for Amy Coney Barrett have focused attention on potential changes to federal regulatory agencies and the federal courts. Narratives about regulatory agencies and courts often pose Democrats as pro-worker and Republicans as anti-worker. But the EEOC enacted the wellness program regulation during the Obama administration as part of the Affordable Care Act. Conservatives often argue against deferring to regulations issued by executive agencies based on separation of powers arguments. But in this case, workers used a separation of powers argument to strike down an anti-worker policy.

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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Maximum benefits rates, the Governor and Nebraska workers’ compensation

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Under Nebraska law, the Governor doesn’t need to sign anything to have maximum benefits increase on an annual basis.

The role of the Governor in deciding maximum rates is a good way to talk about the role played by the Executive Branch in Nebraska workers compensation law.

Nebraska’s maximum rate for workers’ compensation benefits will increase for 2021. The court has not announced by how much the amount will increase, but the fact that neither the State of Nebraska or the Nebraska Workers’ Compensation Court have announced there will be a hearing on the matter, means the rate will increase.

The process in which the maximum rate increases is a good way to discuss how the Executive Branch, can affect workers’ compensation in Nebraska. For now, that influence is limited, but as discussed below the influence may increase with a looming United State Supreme Court decision.

But to start, let’s talk about how the Governor can impact workers’ compensation in Nebraska and what the decision to increase Nebraska maximum benefit might mean in the near term.

The Governor and maximum benefit increases.

Most years, the maximum benefit increases for injured workers in Nebraska. Here is how the process works. Under Neb. Rev. Stat. 48-121.02 the Nebraska Department of Labor calculates the state average weekly wage which calculates the number of employees covered by the Nebraska Employment Security Act (unemployment) divided by their total wages. The Department of Labor then gives the number to Nebraska Workers’ Compensation Court. By law, this happens on October 1st.

The workers compensation court then gives this data to the Governor who has until November 15th to hold a hearing as to whether he or she will suspend maximum benefit rate increase. But by October 16th, the Governor must announce a public hearing. So unless the Governor notices a hearing by October 16, the maximum rate will increase by the amount calculated by the Nebraska Department of Labor. There are no hearings announced as of October 18, 2020, so it’s safe to assume the maximum rate will increase in 2021.

What does the maximum benefit increase mean in the big picture?

By law, the Governor needs to consider overall economic conditions and workers’ compensation costs in as factors in deciding not to increase maximum workers’ compensation benefits. This year I thought maybe the COVID-19 induced recession may have forced the business community to ask for some relief from workers’ compensation costs. Employers have been asking for overall liability shields related to COVID. However, for this year at least, it doesn’t seem like the Governor thinks workers’ compensation costs are enough of a concern to forestall an increase in maximum benefits.

The state executive branch and Nebraska workers’ compensation

Nebraska adjudicates workers’ compensation cases within our judicial branch unlike Iowa and other states who adjudicate workers’ compensation cases in the executive branch. 48-121.01 and 48-121.02 are one of the few direct mentions of the Executive branch agencies in the Nebraska Workers’ Compensation Act. The attorney general’s office has the ability to prosecute some fraud and employer misconduct and also is involved in vocational rehabilitation benefits.

Arguably the biggest influence the executive branch has over the Nebraska Workers Compensation Court is that the Governor appoints judges. But the ability of the Governor to appoint judges is reined in by a bi-partisan Judicial Nominating Commission. The Commission forwards the names of applicants for judgeships to Governor. The Commission serves as the equivalent of a judicial human resources department that screens qualified applicants for the Governor.

And unlike the federal judiciary, state court judges in Nebraska are subject to judicial retention elections. This system of judicial nominating committees and judicial retention elections is known as the Missouri Plan. However an upcoming United States Supreme Court case could change how state’s like Nebraska select judges.

Trouble on the horizon for Judicial nominating commissions?

Earlier this month, the Supreme Court heard a case from Delaware where a judicial applicant challenged a Delaware requirement that judges to their state courts retain a partisan balance on 1st Amendment grounds. Arguments in favor of the Delaware law pointed out that striking down this law could invalidate laws implementing judicial commissions in other states such as Nebraska.

A related challenge to judicial nominating committees could be the non-delegation doctrine which holds that Legislative branches can’t delegate their powers to other branches of the government or even private agencies. Non-delegation challenges have largely failed in Nebraska, but the addition of Brett Kavanaugh and likely addition of Amy Coney Barrett could mean the United State Supreme Court revives this doctrine. Nebraska law gives the Nebraska State Bar Association a role in selecting lawyer members of the Judicial Nominating Commissions.

If appellate courts held Nebraska’s methods of selecting judges is unconstitutional it would likely set off a legislative and political scramble.

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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Why does your doctor want you to sign a “work restriction agreement”?

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I saw something new in the world of workers’ compensation last month; a “work restriction agreement” between an employee and a doctor. The agreement raised my eyebrows when I first saw it and it raised my eyebrows again when I dug it up to write this post.

The more I thought about this agreement, the more I saw the handiwork of a nurse case manager. Nurse case managers have all sorts of advantages over injured in workers in a workers’ compensation claim. In my mind, this agreement really seemed like running up the proverbial score.

So why did this agreement rub me the wrong way?

Trust and stigma in workers’ compensation

When I saw the agreement, I thought about the agreements that doctors often make patients sign in order to receive opioid pain medication. To some extent those agreements are well-intentioned because they can inform patients about how to take medication properly.  But the agreements have been criticized for undermining the doctor-patient relationship and stigmatizing users of prescription drugs as potential addicts. Injured workers are equated with drug addicts.

Like drug addiction, issues about doctor-patient trust and stigma are major issues for injured workers. Many injured workers refuse to claim workers compensation benefits out of fear as being stigmatized as freeloaders looking to “milk the system”. But even if workers overcome that stigma and claim benefits, most workers are surprised to find how little privacy they have regarding their health history once they claim benefits.

The role of the nurse case manager

One of the most visible examples of the relative lack of privacy in workers’ compensation claims is the nurse case manager. A nurse case manager is usually a nurse hired on behalf of the workers compensation insurer, but it can be someone employed directly by your employer. This nurse case manager will suddenly pop up in the examination room when you visit your doctor or a doctor about a work injury.

We tell our clients to tell that nurse case manager to scram (politely of course). That might be less of an option if the nurse case manager works at your company and is more or less in management. An employee may feel pressured to allow a company nurse case manager in an exam room out of fear of losing their job or being disciplined. Nebraska law makes it illegal for employers to retaliate against employees for claiming workers’ compensation. I’ve never seen a case related to an employee telling an in-house nurse case manager to leave an examination room, but it could be an interesting case.

But even if you can get the nurse case manager out of the exam room, you can’t stop a nurse case manager from talking with your doctor privately. So, what is it that the doctor and the nurse case manager talk about? Oftentimes it’s whether an employee can return to work. That’s where these “work restriction agreements” come into play.

How the work restriction agreement works and can work

I think nurse case managers are driving the bus on “work restriction agreements.” Some doctors like nurse case managers. I think part of reason some doctors like nurse case managers is oftentimes a nurse case manager will have access to written job descriptions that help doctors to tailor work restrictions.

The work restriction agreement I saw incorporated a written job description. The agreement contained a provision that the workers work restrictions were just exactly as described by the doctors note. This would limit the employee’s ability to testify to the extent of their own restrictions at trial.

In addition, the agreement contained a provision that the employee would refuse work that exceeded her restrictions. Interestingly enough, the agreement created no requirement that the employer not ask or force the employee to exceed their stated work restrictions.  Overall the document created obligations for the employee, but none for the employer. (If this sounds like collusion, it is and you can read more about why this collusion is usually permitted here.)

Given the one-sided and legalistic nature of the “work restriction agreement”, I am not surprised it showed up in cross-examination like questioning from an employer’s lawyer in a workers’ compensation deposition. The nurse case manager was essentially helping to create what amounts to attorney work-product to be used in a workers’ compensation case. (It could also be used in an employment law claim as well.) But while a “work restriction agreement” is a fairly blatant effort to create evidence, nurse case managers have more subtle tactics.

In Nebraska, medical dictation or charting can be admitted into evidence in a workers’ compensation case without worries about hearsay or foundation objections. A good nurse case manager can influence doctors to create medical evidence that is helpful for an employer.

Why nurse case managers have clout

Of course, insurers have more blunt tactics to influence medical evidence – they pay the bill. I remember sending a questionnaire out to a doctor in a case because their dictation wasn’t enough to help prove my client’s case. I was bluntly told by clinic staff that since “workers compensation already paid the bill” that they saw no reason why they needed to fill out additional paperwork. Paying the bills gives insurers a lot of influence and make their nurse case managers seem a lot more persuasive than they would be otherwise.

Many nurse case managers also have long-standing relationships with doctors which leads doctors to trust nurse case managers. It seems nurse case managers aren’t happy with their advantages and are seeking to further their advantage over injured workers through the use of forms like “work restriction agreements” that further stigmatize injured workers.

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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Unless you have Marine One, Air Ambulances are a pricey proposition

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Last Friday President Trump travelled to Walter Reed Hospital in the Presidential helicopter, Marine One, to seek treatment for COVID-19. The President has use of a helicopter, most of us don’t. Sometimes air ambulances are necessary, particularly in remote rural areas, to transport individuals with severe injuries or illnesses.

But if you read this blog, you know that air ambulance bills are often  incredibly expensive — and even worse not covered by insurance.

So why are air ambulance charges often not covered by insurance?

Preemption: Federal rock breaks state scissors

Air ambulances are regulated by the Federal Aviation Administration. The authority for this regulation is the so-called interstate commerce clause. Insurance, whether health insurance or workers compensation, is governed by state law because Congress ruled that insurance regulation is the purview of state law. Workers’ compensation laws are state laws that are constitutionally valid due to a state’s general police powers under the 10th Amendment.

So when accident victims try to pay for an air ambulance charge with health insurance or through workers’ compensation insurance, air ambulance providers argue they aren’t bound by state laws regulating insurance since they are regulated by the federal government.

This argument is called preemption. Preemption means that if state and federal laws conflict on a subject that federal law governs. In other words, the federal rock crushes the state scissors. A majority of courts side with  the air ambulance companies in holding that federal law regulating air ambulances pre-empts states from using their laws on insurance to regulate air ambulance charges.

In practical terms, injury cases involving air ambulances are more difficult to resolve. Fortunately, air ambulances aren’t covered by Nebraska’s lien statute which gives doctors and other providers a right to recover unpaid bills out of a personal injury settlement. This can give attorneys some leverage over these providers

What would the Founding Fathers think about air ambulances?

Before he went to the hospital, the President nominated 7th Circuit Court of Appeals Judge Amy Coney Barrett to replace Ruth Bader Ginsburg on the Supreme Court. Barrett’s views on abortion and other hot button social issues have drawn attention. But the bulk of cases decided by federal courts tend to be esoteric and obscure issues like air ambulance charges that stem from tensions within the United States Constitution.

I don’t know if Barrett has ruled on an air ambulance case. Barrett is known as an “originalist” or someone who looks at the intentions of the Founding Fathers in interpreting the Constitution.

But in my mind air ambulance cases are one example of the limits of the originalist approach. Passenger air travel post-dates the Constitution by about 130 years. What would the Founding Fathers know about air ambulances? Anyone who brings an originalist approach to deciding an issue like air ambulance charges is just dressing up their policy preferences in late 18th century garb.

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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