The why and how of injured workers’ can protect themselves from debt collectors in Nebraska

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Two important and helpful changes to the law for injured workers and their family will take effect on August 31, 2019. One change could protect injured workers’ form debt collectors. The other change will make it easier for dependents of foreign workers who were killed at work.

Today I will write about the collections bill and on Monday I will post about the foreign dependents law.

The law amends Neb. Rev. Stat. 48-1,108 by prohibiting a collection agency from attempting to collect a debt if there is a case pending in the Workers’ Compensation Court and the debt is alleged to be subject to payment under a work comp injury. Nebraska has gained national infamy for aggressive debt collection practices, so this legislation provides much needed relief for injured workers.

What this means is that lawyers can assist in getting collection agencies to halt collection of medical bills that are related to the work accident and injuries. This is extra important for injured workers because often they may not be able to return to work, and if their work comp claim has been denied, it often isn’t even possible to pay the bills that the employer should have to pay in the first place.

How does the bill work? Once an injured worker is billed for treatment, he/she should contact his lawyer if that bill has not been paid. Then, the lawyer representing the injured worker must provide the collection agency with notice of the pending workers’ compensation claim. The notice must be provided, in writing, to the provider or collection agency. The initial notice must contain the provider’s name, the injured worker’s date of the injury, a description of the injury and the filing date/case number of the pending case in the Workers’ Compensation Court.

In that same notice, or within another thirty days, notice should also be given that identifies the specific debt that is related to the workers’ compensation claim. In other words, the collection agency must be able to know what bills are potentially related to the work comp claim that way they can still continue to pursue collection on any unrelated debts.

The notice must be made by personal delivery, first class mail, or by another method otherwise agreed to. What “any other method” means is that likely the parties will agree that notice via email will be enough for purposes of the statute. Once notice is received, any collection lawsuits will be stayed (halted) until the workers’ compensation claim has been finalized.

The law requires that a workers’ compensation case actually be filed in the Nebraska Workers’ Compensation Court. While an injured worker can proceed pro se or without a lawyer, the employer will likely have an attorney, so injured workers should at least consult with an attorney,

The collections bill and foreign dependents bill both passed as part of LB 418 that passed the Legislature 35-0.  We were able to get these laws passed due, in part, to our firm’s close work with the Nebraska Association of Trial Attorneys (NATA), and are proud that we are able to help workers in the Legislature.

On that note, these bills will be further discussed and analyzed in a seminar that I am chairing for the Nebraska Association of Trial Attorneys on October 9, 2019 as part of the annual meeting of the Nebraska State Bar Association.

The offices of Rehm, Bennett & Moore, 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 .

Workers compensation in a new “Lochner era”

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Last week I wrote about a 4th Ciicruit Court of Appeals decision, U.S.v Hill,  that upheld a federal hate crime conviction of an Amazon employee who assaulted his co-worker because he believed the co-worker was gay.

That post focused on how workers’ compensation laws could apply to a violent hate crime on the job. But in the big picture, Hill is an important case beause of its disucssion of the interstate commerce clause. The commerce clause is important to many areas of law including workers’ compensation

The Constitution gives Congress power to regulate commerce between states. The federal role in regulating interstate commerce has been argued in the federal appellate courts for nearly 200 years. The 4th Circuit does a good job of summarizing those arguments in U.S. v. Hill. (If you are lawyer or law student with a long flight coming up you can read the Lopez and Morrison decisions for even more background)

Workers’ compensation laws were enacted in the early 20th century when there was a relatively narrow definition of what constituted interstate commerce. Therefore Congress couldn’t enact general workers’ compensation laws, states had to enact workers’ compensation laws for them to be constitutional.

But the definition of interstate commerce was broadened in the 1930s during The New Deal. That broader definition of interstate commerce allowed Congress to enact the Occupational Health and Safety Act in the 1970s. That broad definition of interstate commerce also underlined federal efforts to impose minimum standards on state workers’ compensation laws. The threat of federal intervention in the 1970s and 1980s actually lead to states making their workers’ compensation laws more generous to employees. This stands in stark contrast to pro-corporate “reforms” that started in the 1990s once threats of federal intervention receded.

Federal hate crime laws are also based on relatively broad readings of the interstate commerce clause. The 4th Circuit broadly read the interstate commerce clause in the Hill case. But starting in 1995 with afore mentioned Lopez case, the Supreme Court has effectively narrowed the reach of the interstate commerce clause without formally overturning New Deal and post-New Deal case law broadly interpreting interstate commerce clause. The trial court and disenting judge in the 4th Circuit relied on that narrow reading of the commerce clause in Hill.

If you read the 4th Circuit’s and trial court decision in U.S. v. Hill along with Lopez and Morrison, most people would agree that the Supreme Court’s law on interstate commerce is a jumbled mess. The last time workers’ compensation laws were broadly improved on a national basis it happened under the threat of federal intervention. Employers likely wouldn’t have been able to challenge federal intervention in the 1970s or 1980s based on the interstate commerce clause. I’m much less sure of that in 2019. If workers’ advocates want federal intervention to improve state workers’ compensation laws, they may need to find other ways to make that intervention pass constitutional muster.

Lawyers who represent injrued workers tend to be skeptical of “federalization.” We have our reasons. Federal law can create serious hassles for medical charges related to air ambulances, negotating insurance liens under ERISA and Medicare Set Asides are a persistent headache as well.

But while federal law can cause hassles for injured workers and their lawyers, states gutting workers’ compensation laws is an a direct and existential threat to the well being of injured workers and their attorneys. The threat of federal intervention in state workers’ compensation laws in the 1970s and 1980s meant that workers’compensation plaintiff’s lawyers didn’t have that ever present sense of dread about the future of their practice.

Trial lawyers have had some luck fighting back against workers’ compensation reforms in state courts. But relief from the federal courts seems to be less likely. University of Michigan law professor Sam Bagenstos published a law review article about a return to the so-called Lochner Era when it comes to labor and employment law. This means case law will tend to favor employers. The Supreme Court’s interstate commerce clause decisions seem to algin with  Lochner era. Ultimately, appellate courts probably aren’t going to preserve let along substantially improve workers’ compensation laws. Those improvements will have to be made in the political arena.

The offices of Rehm, Bennett & Moore, 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 Constitutional law, Workers Compensation and tagged , , .

Can a hate crime be a workers’ comp. claim?

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Why would a blog entitled “Nebraska Workers’ Compensation Watch” post about a federal criminal case in Virginia?

What drew my attention to the 4th Circuit’s decision in U.S. v Hill was that involved two things relevant to workers’ compensation: 1) a workplace assault and 2) a discussion of the interstate commerce clause. I will write about the workers’ compensation issues arising from hate crimes on the job today and post about the constitutional law issues on Monday.

Factual background

Hill assaulted a co-worker in at an Amazon warehouse in Virginia because he perceived him to be gay. Hill was charged under federal hate crime laws. He was ultimately convicted by a jury, but his conviction was overturned by the trial judge who found federal hate crimes statute violated the interstate commerce clause. The 4th Circuit Court of Appeals reversed the trial court’s decision. (You can read a better summary of the Hill case in a blog post written by New York civil rights attorney Eric Lesh. I wouldn’t have known about the case without seeing his post on Twitter.)

Can a hate crime on the job be a workers’ compensation case?

The answer to the question depends on your jurisdiction. Not every injury to an employee during work hours or on company premises is necessarily covered by workers’ compensation. The injury has to arise from an employment risk. In Nebraska, an injury incurred from a workplace assault is compensable if it is at least facilitated by work, but it is not compensable if it is related solely to personal reasons.

I believe a hate crime at work, could be a close legal case. Arguably a bias crime would be motivated by personal reasons not related to work. On the flip side, a hate crime arguably isn’t motivated by anything thing else than a status they could share with millions of people. A racist, bigot or homophobe just wants to target someone belonging to a group they dislike.  if work facilitates that targeting, then the hate crime should arguably be covered under the Nebraska Workers’ Compensation Act.

The practical problem with a legal case for an injured workers is that it gives a workers’ compensaiton insurer a reason to deny a claim. This means that a hate crime victim assauted at work would be stuck paying for medical expenses out of pocket depedning on what type of health insurance they have or whether they even have health insurance.

Fortunately in the Hill case, the injured employee didn’t appear to miss much work. The dark cloud to that silver lining is that if the employee was stuck with a medical bill an attorney may be reluctant to take their csse if there isn’t a chance of monetary recovery in the way of temporary or permanent disability.

Physical assaults can also lead to mental trauma. Most states, including Nebraska, allow so-called physical-mental claims when a mental injury stems from a physical injury. In practice, mental injuries can be difficult to quantify if an injured employee has returned back to work. The difficulty of valuing mental injuries could discourage attorney involvment in a workers’ compensaiton case involving a hate crime.

I believe states should pass laws creating a presumption of compensability if an employee is injured on the job as part of a hate crime. Such a presumption would make it less likely that hate crime victims would be stuck with medical bills as a result of a violent hate crime in the workplace. A presumption would also encougage employers to try to prevent violent hate crimes in the workplace. In that regard workers’ compensation laws would work hand-in-glove with occupational safety laws like OSHA and state and federal civil rights laws.

A hate crime in the workplace could also be an employment discrimination case in certain circumstances. This is important because often times when an employee is the victim of an assault from on the job they could be forced to chose between a workers’ compensation case and a tort case under the so-called exclusive remedy of workers’ compensation. But an employee could recover in workers’ compensation without effecting their right to collect on a workplace harassment case. Any criminal sanction against the assailant would also have no effect on a workers’ compensation claim.

Federal hate crime laws only apply in states without hate crime statutes or hate crime statutes that address a bias crime. There was federal jurisdiction in Virginia because, Virginia’s hate crime legislation does not cover sexual orientation. Nebraska law does cover sexual orientation, so an on the job hate crime motivated by sexual orientation would not be a federal criminal case.

Hate crimes laws are like workers’ compensation laws in that they tend to be state specific. The reason workers’ compensation laws are state specific is related to how the Supreme Court interpreted the interstate commerce clause when workers’ compensation laws were enacted. I will discuss this issue more in depth in my next post. 

 

The offices of Rehm, Bennett & Moore, 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 interstate commerce, Nebraska, Workers Compensation and tagged , , .

Can I use the decision in my unemployment appeal in my wrongful termination case?

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Can I use the decision in my unemployment appeal in my wrongful termination case?

Attorney Nate Ring answered this question for his state on his blog, The Nevada Labor Law Blog.

In Nevada, the answer is a firm no by statute.  Nebraska law is a bit more permissive about the use of unemployment decisions in other cases. But in my experience, judges will rarely admit the decisions into evidence or give the decision much weight for the purpose of summary judgment.

I will explain why Nebraska judges usually don’t rely on unemployment decision in other cases. But even if an unemployment decision can’t be used in a wrongful termination case, an unemployment appeal can be useful in investigating a wrongful termination case.

Nebraska judges tend not to give much weight to unemployment decisions in related cases for reasons of procedure and substance. Like Nate Ring wrote, unemployment appeals have rules of evidence that allow in more evidence but allow for far less investigation than in civil court. The differences in evidentiary and procedural rules can lead to an unemployment judge deciding a case about the same termination on a different set of facts.

Secondly, in an unemployment appeal the employer has the burden of proof to show the employee committed misconduct in connection with their employment. In a wrongful termination case, the employee has the burden to show their termination was motivated by  an unlawful reason. In short, it is easier for an employee to win an unemployment appeal. As a result, judges are very reluctant to let an unemployment decision into the records.

But even though an employee generally can’t use an unemployment appeal decision in a wrongful termination case, an unemployment appeal can be helpful in prosecuting a wrongful termination case.

Unemployment appeals are useful in investigating the facts of a termination, For most employees, non-union and private sector employees, it is difficult to obtain an employment file. In a Nebraska unemployment appeal, an employee can subpoena records relevant to their termination.

The employee, or their attorney, also has the opportunity to question employer witnesses who likely would have been involved in the decision to terminate the employee. In Nebraska this questioning is done under oath.

To sum up, an unemployment hearing can be a way for employee to find out additional facts about their termination and get admissions and impeachment evidence in a wrongful termination case..

Sometimes an unemployment appeal can be a chance for an employer to show they can fully justify their termination. If an employer can provide credible documentation of repeated misconduct or performance problems, an employer is likely to be able to defeat an unemployment claim.

This documentation of misconduct or performance problems is often part of so-called progressive discipline. While progressive discipline isn’t required to fire an employee and failure to use progressive discipline generally isn’t evidence of discrimination, progressive discipline is often necessary in an unemployment hearing. If employers don’t follow progressive discipline, they risk having their unemployment taxes increased.

I’ve written previously about the vast powers that employers have to fire employees in the United States. Employers can fire employees at any time for reason. This is known as ‘at-will employment.” The law around unemployment insurance can serve to modify employment at-will by giving a tax penalty to employers who don’t follow progressive discipline in firing employees. So while unemloyment insurnace is thought of a social safety net program, it effectively functions as a civil rights law as it discourages employers from firing employees without some due process.

 

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

This entry was posted in employment law, Nebraska, Unemployment and tagged , .

Still getting medical bills after going to court and winning a workers’ compensation case?

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Getting a collection notice for a bill that was ordered to be paid by a judge is like a bad horror movie sequel

How can an injured worker go to trial, have the court order payment of disputed medical bills, have their employer pay the bills they were ordered to pay, but still be receiving medical bills? It’s like a horror movie or franchise where you think the villain is dead but keeps coming back to life.

Here’s the why and how it can happen in Nebraska.

Neb. Rev. Stat. 48-120(8) allows the court to order that an employer can pay bills through the so-called fee schedule or that employers reimburse other payors. Those payors are either the injured worker or a health insurer that paid a bill that was part of the workers’ compensation case.

Recently I encountered a situation where the court ordered the employer to reimburse a health insurer who had paid some bills in a disputed workers’ compensation case. The employer paid the health insurer, but then the health insurer decided that since the expense was related to a work injury that they could reverse the payment they made to the provider originally.

So, the medical provider attempts to collect the balance from my client. My client was confused and upset because they were getting collection notices for a case where the court had ordered that medical bill to be paid.

What is the solution for the client in this situation? In Nebraska the most leverage a plaintiff would have would be the penalty and fee provisions under Neb. Rev. Stat. 48-125. Once the employee gets the bill, thy should send to their attorney who will put the employer on notice that the medical bill remains unpaid after it was awarded. That puts the onus on the employer to pay within 30 days or be subject to an award of attorney fees under 48-125.

Medical providers and third-party payors don’t have standing to litigate in the Nebraska Workers’ Compensation Court, so I question whether the Nebraska Workers’ Compensation Court would have jurisdiction over them or what relief it could order against them even if it did.

The employee could have a case directly against their health insurer for breach of contract. Since health insurance payments are wages under the Nebraska Wage Payment and Collection Act, there could be a cause of action under that law as well. But in a case of relatively small-time graft by a health insurer, it might not be worth an attorney’s time or even filing fees to bring a case.

The best prevention for this situation would be to have the court order that bills be paid directly to the provider under the fee schedule. But there isn’t any Nebraska case law about when to pay bills under the fee schedule or when a payor should be reimbursed. I’ve had employers balk at being asked to pay at the fee schedule rate rather than to reimburse a third-party payor. In cases involving Medicare and Medicaid the reimbursement rate is generally much less than the workers’ compensation fee schedule rate, so paying at the fee schedule means the employer pays out more.

Injured workers’ may also want the faster reimbursement afforded to them when the court orders an employer to pay them back for any out of pocket medical expenses. If bills are paid under the fee schedule, then medical providers have to reimburse other payors. This can delay repayment and unscrupulous providers may try to pocket payments or double bill workers compensation and health insurance and/or the injured worker.

In the last legislative session, Nebraska passed bills that going forward will limit the ability to collect medical bills that are related to a workers’ compensation claim. However those protections only extend throhg final adjudication of a case. In a case where a health insurer reversed payment to a provider when they had been reimbursed through workers’ compensation after an awarded case, a provider would be free to collect an unpaid balance.

 

The offices of Rehm, Bennett & Moore, 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 , .

Why disability means different things in workers’ compensation and social security

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Workers’ compensation benefits are described as temporary and permanent disability benefits in Nebraska. When many people hear the word disability they think or say “ I don’t want/need permanent disability, I can work.”

I understand the sentiment, but I think non-lawyers confuse Social Security Disability Insurance (SSDI) benefits with workers’ compensation disability benefits.

Broadly defined, disability means how a medical condition or injury impacts someone’s ability to earn wages. There are many differences between the workers’ compensation disability and social security disability, but so-called “non-scheduled” workers’ compensation benefits and SSDI benefits are both paid based on how an injury impacts your ability to earn a living. In both types of claims judges will rely on vocational counselors as experts in determining the extent of a person’s disability

But a recent United States Supreme Court decision, Biestek v. Berryhill, focused on two key differences between workers’ compensation and social security disability when it comes to evaluating the testimony of a vocational counselor — the standard used to determine disability and the procedures you can use to prove disability. The narrow issue in Biestek was the availability of jobs to the claimant within his work restrictions. I hinted at some of those differences in a post I wrote about Biestek, that you can read here. But here is some further explanation about the differences between disability for the sake of workers’ compensation and social security.

In short, it is easier to discover information about the availability of work in a Nebraska workers’ compensation claim than it is an SSDI claim. Injured workers’ also have more ways to investigate the availability of jobs in a Nebraska workers’ compensation claim than they do in a SSDI claim.

SSDI v. Workers’ Compensation: National vs. Local labor market

In order to obtain SSDI, there must be a finding that a claimant can not find work in the national economy. From reading the Biestek case, it’s fairly clear that the availability of jobs within the national economy is somewhat of a mystery based on spotty public information.

In contrast, in a non-scheduled injury in Nebraska, disability is determined first by the hub community, usually where the employee lives, and the available jobs within that community. One of the main points of contention in this type of litigation is what constitutes a reasonable commute. The questions of the cost of the commute in relation to expected wages and the injured workers’ ability to tolerate the commute are usually the most pertinent issues.

Attorneys for injured workers generally try to limit the size of a labor market for their clients as appropriate. The smaller the labor market, in general the easier it is to see the actual availability of jobs from public sources like online ads and even information from government agencies such as the Nebraska Department of Labor. This information makes it easier to check whether a vocational counselor is basing their opinion on accurate information.

Additionally, an attorney for an injured worker can even often get information about jobs available within the plant or worksite where they were hurt. Often times publicly available sources will only have one listing for large employers. Particularly in small towns in Nebraska, a large meatpacker might be the largest employer in town.  These employers will sometimes attempt to argue that the availability of jobs within their plaint is irrelevant in a workers’ compensation case because they can accommodate most any restrictions. At least during the investigation of a case, judges generally don’t find that argument persuasive. As a result an injured worker can find out what jobs they could do within a large manufacturing or food processing plant

SSDI v. Workers’ Compensation: Differences in procedure. Part of the reason that it is easier to probe the basis for an opinion by a vocational counselor in a Nebraska workers’ compensation court than in an SSDI hearing is that rules of civil procedure apply in the Nebraska Workers’ Compensation Court (See NWCC Rule 4). The rules of civil procedure allow a party to do investigation or discovery into the basis for an expert opinion. In Biestek, the Supreme Court basically stated that the decision would have turned out differently if the rules of civil procedure applied in social security proceedings.

In Biestek, the vocational counselor refused to turn over relevant information based on concerns about confidentiality and the Supreme Court held that was permissible. Because the rules of civil procedure apply in the Nebraska Workers’ Compensation Court, an employee is generally free to obtain information that is relevant or could be relevant to their case. (See Rule 6-326(a)(1))

The offices of Rehm, Bennett & Moore, 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, social security, Workers' Compensation and tagged , , .

Biestek v. Berryhill: Bad for SSDI claimants, but good for civil plaintiffs?

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In Biestek v. Berryhill the Supreme Court upheld the partial denial of Social Security Disability Insurance (SSDI) benefits to a claimant based on the opinion of a vocational counselor that the employee could find work in the national economy. The Supreme Court upheld the denial of benefits despite the fact the vocational counselor would not disclose the data that supported her opinion and the ALJ refused claimant’s request for the counselor to reveal the data that formed her opinion.

What interested me in the case, in addition to the vocational rehabilitation issue, was the dissent authored by Justice Gorsuch that was joined by Justice Ginsburg. Viscerally I liked the powerful language of the Gorsuch dissent in a case where I disagreed with the result. After all in a SSDI case the government has the burden to prove the availability of work once a claimant proves impairment. I can’t imagine not being able not being able to evaluate the foundation an adverse opinion. (Particularly an opinion that concluded there was low-skill, light duty manufacturing work available during the Great Recession of the late 2000s/early 2010s)

But ultimately the majority relied on the very deferential “substantial evidence” standard in upholding the denial of benefits. The more I think about the case, I think Justice Sotomayor’s separate dissent was better reasoned, if more nuanced and less emotionally resonant than Gorsuch’s dissent. Nonetheless, I think there are some important takeaways from Biestek.

1. The war on SSDI continues — The Biestek decision indicates that appellate courts will be even more reluctant to reverse denials of benefits. The Biestek decision comes on the heels of anti-applicant legislation and administrative rule changes, rooted in elite consensus against SSDI, that began in the late Obama administration and have accelerated in the Trump administration.

The extreme deference to ALJs could be troublesome in the wake of the Lucia v. SEC decision. In that decision the Supreme Court held it was unconstitutional under the appointments clause to hire ALJs as civil service employees rather than have them appointed by the exectuvie branch. In the wake of the Lucia decision, the Trump administration has decided to change how ALJs are appointed. This has raised concerns that ALJs will be politicized and biased against applicants. The Biestek decision could give politicized ALJs a greenlight to deny benefits without fear of reversal.

2. There are some advantages for plaintiffs in proceedings governed by the rules of civil procedure.  One advantage of administrative type hearings like SSDI are relaxed rules of evidence and procedure that can make it less costly to pursue a claim. But since the rules of civil procedure don’t apply in SSDI, an applicant can be denied benefits on evidence that wouldn’t pass muster in a civil proceeding. 

Thankfully in Nebraska workers compensation, the rules of civil procedure apply (See NWCC Rule 4) and a plaintiff is free to investigate in detali the basis for an opinion made by a vocational counselor.

3. Confidentiality has run amuck in litigation — In Biestek, the ALJ agreed that a vocational counselor could claim confidentiality as a legitimate reason not to disclose the basis for their conclusion that the plaintiff could work. In that regard, Biestek is consistent with a push by corporate defendants to keep court papers and proceedings confidential. I recommend a recent article by Reuters about how confidentiality n litigation helped exacerbate the opioid crisis. I think corporate defendants abuse claims of confidentiality in the litigation process.  The Biestek decision seems to implicitly approve these practrices

4. Biestek could be a good summary judgment case for plaintiffs — The Gorsuch dissent drew parallels between the substantial evidence standard used in administrative proceedings and the substantial evidence standard in summary judgment. But reading between the lines it seems the majority in Biestek believes the substantial evidence standard is a more relaxed evidentiary standard than is believed by Justice Gorsuch.

One study shows that rougly 90 percent of employment law cases are dismissed on summary judgement. Clarification from the Supreme Court that substantial evidence is a relatively relaxed evidentiary standard, could make federal judges less likely to grant summary judgment motions.

The offices of Rehm, Bennett & Moore, 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 SSDI, Supreme Court. Social Security and tagged , , .

Legislation seeks to prevent heat-related deaths on the job

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Reps. Raul Grivjala (D.-Ariz.) and Judy Chu (D.-Cal) introduced federal legislation that would mandate OSHA  standards for workers exposed to high heat as well as mandating paid cooling breaks, access to water and training to recognize heat stroke.

The Asuncion Valdiva Heat Illness and Fatality Prevention Act is named after a California worker who died after picking grapes for ten hours in 105-degree heat and modeled after a California law passed by Rep. Chu when she served in the California legislature.

Fortunately, deaths and injuries from heat exposure are covered by workers’ compensation in Nebraska. This can even be true if heat causes a heart attack where there is a heightened standard for causation. But compensation in workers’ compensation cases is limited and no amount of money can replace the life of a family member.

Nebraska recently experienced nasty heat wave that is still effecting most of the country. While agricultural production in Nebraska is more capital-intensive than in states like Arizona and California, many workers are still vulnerable to heat. The first to come to my mind would be residential construction workers building new houses in shade less subdivisions.

Climate change is expected to raise average summer temperatures in Lincoln, Nebraska by 5.5 degrees Fahrenheit by 2050 and by 11 degrees by 2100. Heat will be an even larger occupational risk than it is today.

Chicago experienced a heat wave in 1995 that killed 749 people. This little remembered natural disaster could be a precursor for more heat-related health problems and deaths in the future and the need to take precautions. The Chicago heat wave of 1995 shows how northern and cold weather areas could be particularly vulnerable to risks from climate-change induced heat waves. Federal legislation about heat standards on the job would be one precaution.

I would urge everyone to contact their elected representatives to support the Asucnion Valdiva Act. Nebraska’ legislators lo like to tout the value of manual labor as a way for young people to build character. But building character shouldn’t mean sacrifcing safety. I also believe that Nebraska should adopt a state law version of the Asuncion Valdiva act.

The offices of Rehm, Bennett & Moore, 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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