Whether marijuana is legal or not, post-injury drug tests are here to stay

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Thomas Robinson wrote a good post where he predicted the legalization of recreational marijuana could lead to less post-injury drug testing.

I live in Nebraska. For the present, legalized recreational marijuana is as a realistic prospect as Pete Ricketts with hair. But even if Nebraska legalized marijuana, I doubt it would decrease post-injury drug testing in this state. Here is why I believe so:

Drug testing, occupational medicine and doctor choice

In short, getting drug tested at an occupational medicine clinic is a way to prod employees to let employers control their medical care. After an injury, many major employers in Omaha or Lincoln send their injured workers to occupational medicine clinics for a drug test. Of course, once the employee is at a clinic for a drug test, it seems convenient to get treatment at that clinic.

I’ve stated before that employers like to use drug testing to reinforce their power in the employee-employer relationship. Drug testing is just one of the many ways that employers and insurers use their power to minimize what they need to pay out in workers’ compensation claims.

Drug testing and drugs besides marijuana

So even if marijuana is legal and it’s difficult to use testing to prove impairment, employers can still test for alcohol and other drugs whether legal or illegal. Sometimes doctors will order drug testing to ensure sobriety from certain substances before a surgery or other procedure. As invasive as such an order may be, if it’s in the context of a workers’ compensation claim, a judge will likely be inclined to let that testing proceed.

What about the OSHA drug testing rule?

OSHA implemented a rule 2016 and clarified in 2018 that could limit post-injury drug testing. But the OSHA rule has exceptions if the drug testing is used as a way to get a discount for workers’ compensation insurance or as investigation into an accident. I think the rule is fairly weak. But even if an employer is sanctioned by OSHA, fines are relatively small for major employers and employees lack a way to sue employers directly for a violation of OSHA rules.

In theory, an employee fired for failing a post-injury drug test could have a retaliation case. After all, but for the employee claiming workers’ compensation they wouldn’t have been drug tested which lead to them being fired. In practice, some courts are finding that merely being injured isn’t enough to invoke the protections of anti-retaliation laws. Some courts could also find that failing a drug test to be a legitimate, non-discriminatory reason to be fired.

Changing the power dynamics between employee and employer

The bottom line is that legalized marijuana will do little if anything to change the imbalance of power between employee and employer. Without laws that provide more protections to employees, employers will continue to test employees for drugs and employees will continue to face consequences for violating drug and alcohol policies – even those that have nothing to do with their employment.

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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Tyson Foods seeks friendlier Federal venue for COVID betting case

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Tyson Foods is seeking to move the lawsuits from state to federal court of the surviving family members of Tyson employees who died of COVID-19 who sued the company over managers betting on COVID-19 deaths at totals of the company’s Waterloo, Iowa plant.

So why does it matter whether the case is tried in state or federal court? Part of the reason is the composition of the jury pool.

Jury pools in packing house towns

I had a jury trial scheduled the third week of April in Dawson County, Nebraska. The largest private employer in that county is Tyson Fresh Meats in Lexington, Nebraska. In the 27-person jury pool, I had four current employees of Tyson. There were likely other who had worked at Tyson or had friends or family who worked at Tyson.

But in a federal court jury pool in Nebraska, there are likely to be fewer jurors who work in meatpacking or know someone who works in meatpacking. Similar dynamics would likely be in play in Iowa which is demographically similar to Nebraska.

Why it’s harder for Tyson to remove the COVID-19 lawsuit to federal court than typical in this case.

Oftentimes cases against large employers are removed to federal court under so-called diversity jurisdiction because the employee and employer are citizens of different states.

However, the Iowa workers compensation act authorizes a tort claim against co-workers for work injuries due to gross negligence. The plaintiffs in the COVID-19 betting pool case are bringing this case under Iowa’s gross negligence law. Since the cause of action arises under Iowa’s workers’ compensation law, it can’t be removed into federal court.  

But Tyson isn’t arguing that for removal from state to federal court on diversity jurisdiction. Tyson is arguing for removal based on acting under a federal order during the height of the COVID-19 pandemic.

The Defense Production Act and pre-emption

In April 2020, then President Trump signed an executive order immunizing meatpackers for civil liability for COVID during the pandemic under the Defense Production Act. I wrote a post about the dubious constitutionality of that order last year.

19 State Attorney Generals from predominately Democratic-controlled states filed a brief in the 8th Circuit Court of Appeals arguing against removal. The brief gave a detailed explanation of why the Defense Production Act shouldn’t apply and also shot down other pre-emption arguments raised by Tyson.

Importantly, the brief for the Democratic AGs re-enforced the importance of state law in enforcing workplace safety laws. It will be interesting to see how the 8th Circuit Court of Appeals rules as it could reveal their thinking about whether federal courts are willing to apply federal law in traditional areas of state jurisdiction like workers’ compensation.

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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Appellate courts uphold red-tape cutting function of Nebraska Workers Compensation Court

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Workers’ compensation doesn’t just mandate that employers provide medical care, disability benefits and retraining benefits for injured workers. Workers’ compensation laws also mandate how employers provide these benefits.

A few recent decisions by Nebraska courts re-affirm the power the Judges of the workers’ compensation court have in dictating the details of workers compensation benefits – at least when it comes to medical care and vocational rehabilitation benefits.

Medical Care – Rogers v. Jack’s Supper Club

In Rogers v. Jack’s Supper Club, the Nebraska Supreme Court affirmed a trial court’s order that an employee injured in Nebraska who first treated in Nebraska who moved to Florida could treat with a doctor in Florida.

Jack’s Supper Club was originally decided by the Nebraska Supreme Court in late 2019. In that version of the case, the court held that it appeared that the employee had not properly changed doctors for the purposes of Nebraska law, but asked the trial court to clarify its order. I wrote last year that the original Jack’s decision was too harsh in my view because Judges can order doctor changes at their discretion under Neb. Rev. Stat. 48-120(6).

My reading of the second case is that the trial court expressly exercised its ability to change doctors and the Nebraska Supreme Court said it was fine.

Vocational Rehabilitation – Font v. JBS

In Font v. JBS, the Nebraska Court of Appeals affirmed a trial court decision that an employer must pay for a vocational rehabilitation program for a shoulder injury involving permanent impairment but not permanent restrictions. In that case, both the court-appointed vocational rehabilitation specialist and the court’s workers compensation section opposed developing a plan involving an injury without formal restrictions.

The court overruled these requests stating that physical restrictions were just one of many factors in determining eligibility for vocational services and that the purpose of VR is prompt rehabilitation. Again the Nebraska Court of Appeals, agreed with the trial court. Specifically, the court agreed with the trial court’s reading of 48-162.01(7) in awarding vocational rehabilitation benefits.

Cutting through red tape

In both Font and Rogers, the practical effect of the decisions was to help workers cut bureaucratic red tape imposed by employers, service providers and a government agency. While some  regulation can be beneficial in a system like workers compensation, a lot of bureaucracy just makes it more difficult and expensive for workers to recover from work injuries.

But the Nebraska Workers Compensation Act gives Judges broad powers to cut through red tape – and at least in Jack’s Supper Club and Font v. JBS appellate courts seem to agree.

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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Exercise, the injured worker and workers compensation

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Warmer weather and reopening of gyms and health clubs could prompt many to renew exercise routines. But if you are recovering from a serious work injury, training for the half-marathon or signing up for crossfit is out of the question.

Fortunately, even moderate exercise benefits physical and mental health. The problem for injured workers is that even supposedly moderate activity may fall outside safe activity limitations.

So what can an injured worker do to maintain their overall health through exercise?

Talk to your doctor and physical therapist

Injured workers need to communicate with their doctors and physical therapists about what kinds of activities they can do safely. Sometimes workers are reluctant to communicate with doctors or therapists because they don’t trust the providers. They don’t trust their doctors and physical therapists because they believe the providers are influenced by their employer or workers compensation insurer. Bluntly, this belief is sometimes well-founded.

But asking about ways to safely stay active is one way to at least curry some favor with a medical doctor or therapist who might sympathize with an employer. Medical providers like patients who want to take part in their own recovery from an injury.

Exercise and credibility

Another group of learned professionals tends to like injured workers who try to stay active despite an injury – workers compensation judges. I think active clients persuade judges for a few reasons. I think Judges read medical records closely and pick up whether doctors like and believe plaintiffs. Doctors like patients who live a healthy lifestyple.

Activity also tends to improve vital signs like blood pressure, weight and resting pulse that are included in the medical records that judges read. Improvements in those vital signs are objective evidence that an employee is actively trying to recover from an injury.

Client credibility matters in workers’ compensation cases because believability often tips the scale on issues like whether an injury is covered by workers compensation and the extent of benefits payable for a work injury. In my experience, the injured worker who does their best to stay active in a safe way tends to win those credibility questions.

Occasionally workers who claim to be unable to work get caught on video doing strenuous exercise. Nevermind, that most workers’ compensation fraud isn’t committed by employees, stories like this are grist for the myth that workers’ compensation cases are almost per se fraudulent. But I believe that a judge can distinguish between someone doing a moderate exercise like walking versus a strenuous exercise like heavy weightlifting or long distance running.

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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Employers can’t play the COVID card to get out of paying workers’ comp benefits

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During the height of the COVID-19 pandemic, it appears that some employers told their injured workers something to the effect of “I know you’re hurt and can’t do your job anymore. Normally we would have light duty for you, but because of the pandemic we don’t have work. So why don’t you just apply for unemployment.”

So what’s wrong with that scenario? The answer is that worker should be receiving workers’ compensation benefits – specifically temporary total or temporary partial disability benefits – when they are under a doctors care and unable to work because of an injury.

While the COVID-19 pandemic was and is a unique situation, the law has answered many of the questions raised by COVID-19 in earlier cases. At least in Nebraska, a plant closure or lack of overall work with an employer is not a legal defense to paying temporary disability benefits.

Temporary disability and unemployment during the pandemic

Normally workers compensation is a better deal for injured workers than unemployment for a few reasons. One, higher benefit rates and two the fact that workers’ compensation benefits are exempt from taxes while typically unemployment benefits are taxable.

But COVID-relief legislation has changed that equation somewhat. The federal government has supplemented meager state unemployment benefits and exempted some unemployment benefits from taxes. Nebraska law also prohibits workers from getting unemployment while collecting temporary total disability.

So, sure an argument can be made that an injured worker is better off on unemployment than workers’ compensation. But if a worker collects unemployment after a work injury, does that mean they can’t come back and collect temporary disability after an injury?

Collecting temporary disability and unemployment: timing is everything

Under Nebraska law a worker who collects unemployment after a work injury, but is denied temporary disability by their employer can be awarded temporary disability without it effecting what they collected in unemployment. So in some sense, you can double collect unemployment and temporary disability. But you can’t collect them at the same time. Timing is everything.

Conversely, an employee can claim unemployment after temporary benefits expire. Unemployment is one way to lessen the effects of the delay between the end of temporary disability and the beginning of permanent disability. But the delays in processing unemployment benefits caused by the pandemic make that a less effective strategy.

Permanent disability and unemployment

In theory a worker can collect permanent disability and unemployment together. I think a worker is on solid legal footing if they are collecting benefits for a scheduled member injury. An employee claiming workers compensation benefits on an injury on loss of earning power basis faces a more difficult time obtaining unemployment. Normally a worker needs to show they are able and available to work to obtain unemployment. It’s hard to square that with a claim you are permanently and totally disabled due the purposes of workers compensation.

Granted, during the pandemic unemployment benefits were paid out regardless of ability to work. However states have been aggressive in trying collect supposed overpayments of unemployment benefits back from citizens. Workers who collecting workers compensation benefits should be cautious in claiming unemployment and seek legal counsel before doing so.

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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Not as simple as ABC

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Much of the discussion over worker classification, whether over California’s Prop 22/AB5 or the federal Protecting the Right to Organize or PRO Act, centers on the use of the employee-friendlier ABC test in distinguishing employees from independent contractors. Employees enjoy the benefit of employment laws, independent contractors don’t.

But even if the ABC test appears to apply, workers don’t always enjoy protections under the laws. Understanding the ABC test better, helps explain why workers  don’t always win even if the ABC Test applies.

The ABC test – control in fact

At least in Nebraska, if an employer can answer these four questions no, then their worker is not an employee : 1) worker 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 biggest hurdle to obtaining employment status is showing a worker is free from control “in fact.” How exactly do you determine if a worker is free from control in fact? Courts like to use tests.  The good news is the courts already have tests that they can use to distinguish a contractor from an employee.

The bad news is that these common law tests are the reason why the ABC test statutes were passed in the first place. More bad news, is that I believe many state court and federal judges will continue to apply common law tests to determine control in fact under the ABC test. Using common law tests tends not to work out well for workers.

I think the role of judges in interpreting statutes is a good transition to another reason why the ABC test is far from a panacea for worker injustice issues. Courts, aided by lawyers from management, are going to find ways not to apply the ABC test. I can think of at least two ways employers could dodge the ABC test when it would appear to apply.

Narrow definition of wages for state unemployment

In Nebraska, the ABC test applies to unemployment insurance. But our state Supreme Court found away around applying the test.

In Omaha World-Herald v. Dernier, the Nebraska Supreme Court held that a newspaper distributor for the Omaha World-Herald was not earning wages for the purposes of unemployment benefits. (Nebraska later broadened the definition of wages for unemployment, but kept the Dernier exemption for newspapers).

Narrow definition of interstate commerce for Fair Labor Standards Act

The 7th Circuit Court of Appeals, in a decision written future Supreme Court Justice Amy Coney Barrett, found that Grub Hub drivers were not covered by the Fair Labor Standards Act because the drivers were not engaged in interstate commerce. The court ruled that commerce between the states was only incidental to the drivers’ employment.

The commerce clause, or interstate commerce, is how federal laws that protect employee pass constitutional muster. Federal courts can also narrowly interpret what constitutes commerce for the purposes of federal law. That narrow definition of commerce stated in US v. EC Knight is why workers’ compensation is a state law. Up until 1947, insurance was excluded from the definition of interstate commerce, which would help explain why unemployment insurance laws are dual state and federal laws.

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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A double-standard on workplace violence?

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Employment laws in the United States are skewed extremely for the benefit of employers. Workplace violence is a prime example. Consider two examples about violence in the workplace

Take the convenience store clerk working overnight in a store that has been robbed before. There are risking their job by refusing to work at an unsafe job. In most places, there is no requirement for protective barriers. In most states, they can’t collect workers’ compensation for mental trauma without a physical injury.  In most states, their sole remedy for injuries from workplace violence is workers compensation, which may provide very limited compensation.

An employee who may be under stress and/or suffering from mental illness may make an off-hand remark or unserious remark about violence. That person can be fired for largely without repercussions in the name of safety.

So in many respects, the threat of violence, even if vague or taken out of context. in the workplace is taken more seriously than actual violence. It’s easy to square this seeming contradiction when you realize employment laws in this country are written to benefit employers. The concept of employment at-will, created by a legal academics in the mid-to-late 19th century, and implemented by judges is the root cause of the imbalance of labor-management relations in this country.

So what can be done to protect employees from actual workplace violence, aside from outright abolishing employment at-will?

OSHA standard on convenience stores

I think OSHA should implement nationwide safety standards for convenience stores. OSHA has been pondering this idea since the 1990s. I know from my informal discussions with local OSHA staff, that this idea is popular with OSHA staff. A rule would improve safety in convenience stores.

I also think a formal rule from OSHA would make any retaliation case stronger under Neb. Rev. Stat. 48-1114. I believe that the OSHA general duty clause would give convenience store workers a way to bring a retaliation claim for reporting unsafe working conditions. But management often argues that vague references to OSHA regulations don’t comprise a protected activity. An OSHA rule would give convenience store and other retail workers a clear legal leg to stand on when reporting workplace violence.

Pass the PRO Act

The vast majority of the time, a union contract provides more on-the-job protections than any government regulation or anti-discrimination law. The House recently passed the Protecting the Right to Organize or PRO Act, that it would make it easier to organize unions. This would be a boon for workplace safety for all workers.

The same troll army of freelance writers, literal neo-liberal shills, who whined about AB5 in California are now attacking the PRO Act. I support the PRO Act. My only concern about the PRO Act is that it gets used by Uber, Lyft, Door Dash, et al. to implement half-a— “portable benefits” schemes under the guise so-called “sectoral bargaining.”

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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Hurt by (and/or fired for) “violating” your work restrictions

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Damned if you do, damned if you don’t. That’s the dilemma for many injured workers under doctor-given work restrictions.

Injured workers are damned by being subject to discipline if they refuse to work above their restrictions, but they can also be disciplined for doing work “above” their restrictions.

Sometimes “violating” work restrictions can even lead to workers’ compensation benefits being denied.

I thought about this topic after I read a blog post by Thomas Robinson involving a Tennessee worker who hurt himself lifting 29 pounds when his permanent restrictions were 25 pounds. Fortunately, the Tennessee Supreme Court stated that in that case that was not sufficient grounds to deny benefits.

But it “violating” work restrictions can be grounds for denying workers compensation benefits in Nebraska in certain circumstances. Primarily, if an injured worker misrepresents their old injury to a new employer.

Misrepresentation as a defense to paying workers compensation benefits in Nebraska

In Nebraska, an employer can deny benefits if an employee misrepresents their work restrictions in an employment application and that misrepresentation leads to the work injury. I think this law has to be interpreted in combination with ADA and similar disability discrimination state laws. I think checking the box “yes” on employment application of whether you can do a job with or without reasonable accommodation shouldn’t be enough to sustain the misrepresentation defense. But not disclosing an old injury in a post-hire physical or health assessment is stronger evidence in my view.

Some of the more creative minds on the management side argue that concealing an old injury from an employer is willful negligence by an employee. Willful negligence is also grounds to deny workers’ compensation benefits. The Tennessee decision more or less rejected that argument and would be good persuasive authority on the issue.

Fired for violating work restrictions

Can an employer fire you “violating” work restrictions? It depends on the circumstances. If you’re on a 10 pound restriction and you get caught doing cross-fit, I would say yes. But a case where you lift 29 pounds with a 25 pound restriction is a closer call. It’s unlawful to fire some in Nebraska, and most other states, for filing a workers’ compensation claim. Firing someone for a petty and unintentional “violation” of work restrictions would seem suspect and could infer that the workers’ compensation claim was the reason they were fired.

Why I put quote marks around “violations” of work restrictions.

I’m not putting quote marks arounds “violating work restrictions” just to be funny. Maybe I need to explain the joke. Anyone who knows anything about workers’ compensation and is being honest, knows that work restrictions are just an estimate. Even restrictions from a valid Functional Capacity Evaluation are more or less estimates of work abilities.

But what if an employee is fired for exceeding work restrictions that weren’t disclosed?

Fired for concealing work restrictions?

I think these are close cases. As a plaintiff’s lawyer, I would argue that someone who was fired not disclosing a work injury still has a retaliation claim. After all, but for the employee filing a workers’ compensation case, the employer would not have discovered the concealment and fired the employee. Maybe that seems like an overly technical argument, but does the argument at least shift the burden on to the employer to argue an equitable defense like laches or unclean hands? I don’t know the answer to that question, but if there is other evidence of retaliatory motive then concealing an old work injury may not be a lawful reason to terminate an employee.

Don’t risk getting fired

However, as an employee you don’t want to take the risk. The ADA requires that employers attempt to work with you to accommodate a disability. If you are concerned about returning to work after an injury, don’t conceal old injuries if they could reasonably impact your ability to do your job. Often time there are simple fixes that allow you to complete your job duties. The Job Accommodation Network has suggestions about how to accommodate disabilities. Try to use those resources and/or work with your co-workers to try to accommodate your disability. Unions are also a great resource for accommodating an injury, use them when they are available.

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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