Mental health care provider shortage hits injured workers in rural Nebraska particularly hard

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The shortage of mental-health care providers in Nebraska makes it harder for rural residents to get prompt care for mental injuries on the job; harder to prove cases for mental injury at work

Nebraska has a shortage of mental-health practitioners that is particularity serious in rural areas. This shortage of mental health providers delays and impairs the recovery of injured workers in Nebraska who suffer a mental injury as a result of physical injury or a mental injury on the job. It also makes these claims harder to prosecute.

Quick Review: Who gets mental injury benefits in Nebraska

Unless you are a first responder as defined by Neb. Rev. Stat. 48-101.1, an injured worker can only be covered for a mental injury if it is related to a physical injury. This can happen with any kind of injury, but in my experience it is most common with head injuries.

First responders in Nebraska, can collect for purely mental or “mental-mental” injuries. The definition of first responder has been generally expanded from police and firefighters to include corrections officers and mental health technicians in our state mental hospitals.

Volunteer firefighters are also eligible for workers’ compensation benefits including mental-mental benefits.

How the lack of mental health care providers effects a workers’ compensation claim

I believe the first drawback for injured workers is delayed treatment. Delayed treatment can lead to more severe permanent injuries

Maybe when everything goes smoothly in a workers’ compensation case, which usually isn’t happening if an injured worker is calling a lawyer, a delay in treatment can lead to longer payment of temporary total disability benefits.

But even assuming those temporary benefits are fair, workers’ compensation benefits aren’t designed to fully compensate employees for work injuries. But workers give up full payment for the promise of prompt payment of benefits. But if mental health practitioners aren’t available, injured workers will not get prompt medical treatment for a mental injury.

The lack of mental health providers in rural areas deprives rural workers a substantial part of the so-called grand bargain of workers’ compensation – prompt payment of defined benefits for work injuries.

Another element of the grand bargain are less formal rules of evidence and procedure that should make it easier to prove cases for injured workers. But again, the lack of mental health providers in rural areas makes it harder for rural workers to take advantage of that aspect of the grand bargain as well.

But even if mental-health practitioners are available, they may not qualify as expert witnesses under Nebraska workers’ compensation law.

Many mental health treaters aren’t qualified to testify by report

In Nebraska only a psychologist or a medical doctor is qualified to testify to submit a written report about a mental injury in a workers’ compensation case. The inability of physicians’ assistants or nurse practitioners to testify by report is already a problem for Nebraska residents in more remote areas of the state. The same issues would apply to counselor who isn’t a psychologist who treats an injured worker for a mental injury.

But while the small town nurse practitioner and counselor who treat mental work injuries don’t qualify as so-called Rule 10 experts in the Nebraska workers’ compensation court, the hired gun MDs and PhDs in Lincoln, Omaha or Denver who insurers and claims administrators send rural workers to do qualify as Rule 10 experts.

Lawyers for injured workers can sometimes fix these issues. Sometimes MDs or psychologists will endorse the findings of counselors. Other times a plaintiff’s lawyer can arrange for a medical examination. But neither of those approaches is fool-proof when it comes to litigation. But even when those tactics work in a case, they often don’t address the problem that an employee is not receiving prompt mental health treatment when it is needed.

Other solutions?

A lawyer would be free to call a counselor to testify live at a workers’ compensation trial, but that depends on the counselor’s willingness to cooperate in litigation. (Sure, you can subpoena a witness, but that’s not a great option.)

Congress looks likely to pass increased funding for mental-health in response to publicized mass-shootings in Uvalde, Texas and Buffalo. Hopefully the funding is adequate to help address the mental-health care provider shortage in Nebraska.

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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Increase in mileage payments necessary for injured workers in Nebraska, but inflation erodes the value of workers’ compensation benefits

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In Nebraska workers’ compensation benefits are not indexed for inflation. Further inflation can work to decrease the amount of benefits paid in addition to the value of those benefits.

The Nebraska Workers’ Compensation Court announced earlier this month that mileage reimbursement for medical and vocational travel will increase from $.585 per mile to $.625 a mile effective July 1, 2022.

The rule change should benefit injured workers – particularly those who live in rural parts of Nebraska who are often required to travel long distances to larger cities for specialized medical care. But increased travel costs are part of a broader trend of rising inflation. That trend will impact injured workers in less helpful ways. 

Workers’ compensation benefits are set by an employee’s wages at or near the time of injury. Inflation is rising at a rate higher that wages. So workers are starting their claims with reduced real wages.

Inflation is bad for injured workers in Nebraska (and most places) for other reasons. In Nebraska, weekly workers compensation benefits are fixed at earnings near the time of injury. Nebraska doesn’t adjust those benefits for inflation. Even when inflation was more moderate injured workers got a raw deal because the value of their benefits declined relative to inflation. Higher inflation just further erodes the grand bargain of workers’ compensations.

But inflation doesn’t just decrease the purchasing power of workers’ compensation benefits, it can reduce the nominal or gross amount of benefits awarded.

An award of permanent disability benefits is based on how the injury effects a person’s ability to earn a living. Further, injured workers who have long lasting injuries often have their disability determined by wages at the time they healed from their injury. So even if an employee can’t increase their benefits for inflation, their earning power is based wages that have inflated while they have been healing from their injury.

Again, even during times of modest inflation workers could get nickeled and dimed a 2.5-5 percent of loss of earning power based on inflation. Higher inflation will probably mean that loss of earning power benefits will be further discounted. I’ve written about how to argue against using inflation in lost of earning power analysis. I think those kinds of arguments will be more urgent with higher inflation, but I don’t know how appellate courts will come down on the issue.

While higher inflation is an overall negative for most injured employees, there could be some positive effects of higher inflation.

One bit of good news is that higher transportation costs could increase awards of permanent disability

An award of permanent disability benefits is based on how the injury effects a person’s ability to earn a living. That hinges in part on where you live. Commute costs factor into the amount of available jobs and will be considered by Judges in how disabled an individual is for the purposes of workers’ compensation. Higher commuting costs tend to lead to higher disability awards.

Commute costs can also be a decisive factor in deciding whether an employee is permanently partially or permanently totally disabled. Permanent partial disability benefits are limited to 300 weeks while permanent total disability benefits are paid out over a lifetime. The difference can amount to hundreds of thousands of dollars.

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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Good news, bad news when it comes to heat exposure and workplace law

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Nebraska law can be friendly towards weather-related injury and weather-safety whistleblower claims, but workers should expect extra scrutiny from courts on these types of claims.

Nebraskans started experiencing their first heat wave of the summer this weekend. Most of the state will see temperatures at or near 100 degrees Fahrenheit early next week. Nebraska workers face a mixed bag of news when it comes to state and federal workplace safety laws when it comes to heat.

Good news: Positional risk doctrine and weather-related work injuries in Nebraska.

In Nebraska, a worker who is injured as a result of extreme weather should be able to collect workers’ compensation because the state has adopted the positional-risk test – at least when it comes to tornados. Positional risk means that if you are injured at work because of a general or neutral risk like weather at work, then you can collect workers’ compensation for your injury. Not all states have adopted this rule which makes it harder for those workers to collect workers compensation for heat-related injuries.

Bad news: Heightened causation for heat-related heart attacks in Nebraska

One common heat-related injury is a heart attack. But heart attacks have a more difficult causation standard that typical work injuries in Nebraska. Nebraska typically has what is called contributing factor causation which means that a work injury or working conditions can combine with other personal factors and still be covered by workers’ compensation. But with a heart attack, an employee has to show that work substantially increased the risk of the heart attack. It’s not an impossible standard, to meet but at the very least it can give an insurer/employer the ability to initially deny a heat-related heart attack claim.

Good news: USDOL is pushing a heat standard

In contrast to the Obama administration, the Biden DOL is moving forward with a rule for heat exposure on the job. This is important because OSHA is more likely to sanction employers if they are violating a specific rule rather than the so-called General duty clause.

Bad news: It could take up to 10 years to enact a specific OSHA heat rule

Reporter Mike Elk of Payday Report and former OSHA official turned blogger Jordan Barab have done great writing and reporting about the delays in enacting workplace safety rules through OSHA. In regards to the heat rule, if everything goes right then a heat rule may get enacted sometime in 2027 or 2028. This is likely assuming a second Biden term or that Biden is succeeded by a Democrat in 2025. This isn’t a political blog per se, but those are big assumptions at this point.

Good news/Bad News: Private enforcement via whistleblower laws

However employees who believe that their employer is creating unsafe conditions related to heat can still call OSHA. From my experience, OSHA is more likely to take action if employees are willing to forgo anonymity in their complaint. Forgoing anonymity when making a complaint can also make it easier for an employee to succeed in a retaliation case.

While a general complaint about unsafe working conditions doesn’t always give you a right to sue your employer, employees in certain industries can ask for administrative hearings in retaliation cases. Further, Nebraska has a general whistleblower law that allows employees to sue employers in state court over retaliation.

Again, these cases are stronger if an employee is willing to call OSHA and forgo anonymity. State and federal judges have enacted many hurdles in retaliation cases that make it harder for employees to win these claims. I think part of the reason why judges have thrown up hurdles in retaliation cases is because most employees are reluctant to report misconduct to a government agency and want anonymity when they do. Bluntly, it seems like courts are adopting the “I’m the m-fer who called OSHA!” test for what constitutes a protected activity in a retaliation case.

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 problem with being released back to work from an injury with no restrictions when you still probably have restrictions

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Being sent back to work with “no restrictions” can actually make it harder for injured workers to return to work and retain jobs

Recently I read medical records in two separate cases where doctors wrote they were doing my client’s favors by releasing them to work without restrictions when there was evidence of permanent damage or impairment from the injury.

The thought is that a worker with no restrictions will have an easier time returning to work. But in my experience, an inaccurate opinion that a worker has no restrictions makes it harder for an employee to return to work and retain work after an injury.

Vocational rehabilitation and return to work – In Nebraska, a worker who is unable to return back to work at a similar rate of pay because of an injury can be eligible for vocational rehabilitation benefits. Sometimes this means job placement, other times it can be mean re-training or further education. This also means being paid temporary total disability while being involved in a program.

An inaccurate statement from a doctor stating an employee has “no restrictions” makes it harder for an employee to obtain vocational rehabilitation. Nebraska law allows for awards of vocational rehabilitation based on an injured workers’ testimony. But that requires the delay and uncertainty of a hearing.

Sometimes and an employee is released back to work with impairment but no restrictions. The impairment entitles an employee to permanent disability and can be a basis for the Nebraska workers’ compensation court can appoint a counselor for vocational rehabilitation services. But without restrictions a counselor may have difficulty placing an employee in a job or developing a plan.

The bottom line is, if an employee has permanent restrictions given by a doctor, then vocational rehabilitation can start faster and counselors have a much easier time in developing job placement or retraining programs.

No restrictions. No reasonable accommodations under the ADA? Under the Americans with Disabilities Act an employee can ask for a reasonable accommodation based on a disability. An employee with a medical note that they have no restrictions will find it difficult to impossible to find an employer who will try to reasonably accommodate them.

While in theory, employees have some ability to testify to the extent of their own disability under the ADA, that testimony usually carries less weight in an ADA case than it does in a Nebraska workers’ compensation case. But even if an employee can succeed in an ADA case, that means an employer has taken some adverse action against them. Usually, but not always, this means they were fired. This also usually means an employee waits a year at shortest for an outcome.

But an employee can short-circuit this hassle if they have reasonably accurate work restrictions from an MD.

Getting fired for false representation of your injury? I think doctors who give their patients inaccurate work releases without restrictions could in some circumstances be setting up their clients for being fired. Employers can ask about prior injuries post-hire if it is job-related. An employee who is mislead into believing they have “no restrictions” may believe they have no restrictions. A doctor who purposefully releases someone back to work with no restrictions may also be re-enforce the falsehood that no one will hire a worker with restrictions.

So what could happen? The employee is unable to tolerate the job and maybe asks for an accommodation. Then it comes out the person had a prior injury. Lying on an employment application is a good way for an employee to get fired.

Nebraska law also makes it harder for employees who misrepresent their physical condition during the hiring process to collect workers’ compensation benefits.

No, having “no restrictions” won’t ruin your workers compensation case.

Nebraska workers’ compensation law allows employees to testify to the extent of their disability or injury so long as the injury is found to be work-related. But evidence that a doctor believes an employee has “no restrictions” gives employers a plausible excuse to delay benefit payments.

Lawyers for injured workers can often times “fix” a “no restrictions” report with results from a Functional Capacity Evaluation or FCE. Fortunately many doctors will order these tests, but not every doctor does. But even if the tests are ordered, an employee or their attorney can get stuck with the cost of the examination.

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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Counter-point: It’s about time unions had a “moment”

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A good union can shut down a lot of standard tricks from insurers/claims administrators/self-insureds in workers’ compensation claims

My fellow workplace law blogger, Cleveland-based management-side attorney-blogger Jon Hyman, has been raising the alarm about resurgent unionization drives in the wake of union victories at Amazon and Starbucks. His message to employers is that unions, long thought dead, are making a comeback.

One Jon’s fear and nightmare is another Jon’s hope and dream. In my 17 years of experience of representing employees in workers’ compensation and employment law cases, I can say it’s about time unions had a moment.

This is particularly true if an employee gets hurt on the job. Here are the major advantages of working union versus working non-union when you get hurt at work.

Job Security

Most union contracts require that an employer proves just or good cause to fire an employee. In practice this means proving some willful misconduct weighed against an employee’s work history and other mitigating factors. If and when push comes to shove, an employee has a good chance of overturning a termination in an arbitration proceeding.

In contrast,  a non-union or at-will employee can be fired at any time. Sure most states, including Nebraska, have laws against workers’ compensation retaliation. But are those laws effective? A study by the Texas Department of Insurance questions the effectiveness of those laws. They reported 52 percent of injured workers were fired more than six months after being hurt on the job.

I’m not surprised as there are all sorts of pro-management tricks and traps in retaliation cases. For example, courts are reluctant to find protected activity, but even if they do they are raising the burden of proof for causation. There are also judge-made rules like the managers rule that disqualify certain employees from claiming retaliation and the good old-fashioned “honest belief” rule that often leads courts to discount false reasons for employment decisions.

Of course an employee also has the burden of proof in a civil case against their employer, so employees are a playing field tilted toward the employer. A lot of judicial precedent just pours grease on that uphill climb.

Job Security, Part 2: Extended leave and employee-friendly return to work programs.

Union contracts typically give employees protections above and beyond what is afforded to at-will or non-union employees.

One reason many injured workers lose their jobs is that their recovery takes longer than the mandated 12 weeks of protected leave under the Family Medical Leave Act. (This is particularly true if employers/insurers drag their feet on approving medical care) Further, even if an employer and employee go through a good faith interactive process to accommodate a medical condition as required by the Americans with Disabilities Act (and that’s a big if) the employee isn’t guaranteed a job.

Union contracts often address these concerns through extended leave provisions, negotiating return to work and light duty issues and giving employees seniority rights that allow them to bid into easier jobs. Unions can also build solidarity among co-workers which makes it easier for workers to informally accommodate disabilities among themselves rather than engaging in paper-heavy and adversarial process with human resources and/or occupational health.

Good union v. meh union when it comes to workers comp.

I just read over a union contract on workers’ compensation and return to work for a client. Like 1980s NBA action, it is fantastic. Not only do they negotiate return to work and light duty, they bargain for the employer to cooperate in the claim and to not interfere or retaliate for members who get hurt on the job. Further they place some limits on the company contacting their members. In other words, if a company engages in a lot of standard insurance company/claims administrator/self-insured shenanigans, the company could be looking at arbitration.

Some unions punt on workers’ compensation under the theory that since they don’t negotiate for workers’ compensation, they will leave it to the company. I don’t like that philosophy. But even in a union where the union takes a hands-off position towards workers’ compensation, the employee still has more job security and better benefits.

Good insurance benefits for denied workers’ compensation cases

Insurers and claims administrators like denying workers’ compensations cases on questionable circumstances. This is particularly true in states like Nebraska where employees can’t sue their workers’ compensation insurer for bad faith. If an employee doesn’t have health insurance, then they will often have a hard time getting the medical evidence they need to prove up their workers’ compensation case by going to the doctor.

But union employers tend to have good health insurance that allows employees to get the medical treatment they need for their health and for their disputed workers’ compensation cases.  Sometimes employees can also collect private disability. Sure health insurance and disability liens can create hassles in resolving a workers’ compensation case, but getting health care and income far outweighs any inconvenience caused by dealing with potential liens at the end of a case.

Do non-union employers have similar benefits. Sometimes yes, but why do they have these types of benefits? Often times its to offer benefits similar to unionized plants. I see this frequently in meat packing in Nebraska. I litigate frequently against beef processing plants owned by Tyson in Lexington, Nebraska, Cargill in Schuyler and JBS in Grand Island. JBS and Cargill are union, Tyson isn’t. But Tyson’s benefits and even some of their leave policies are similar to the unionized plants. Tyson has to keep up with JBS and Cargill.

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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Will fading federal privacy rights limit ability of injured workers to protect privacy?

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But if states enshrine privacy rights in their state constitutions in reaction to probable Roe reversal will it limit the influence of insurance case managers in workers’ compensation claims?

If the United States Supreme Court does in fact overturn Roe v. Wade, as it seems they will based on a draft opinion leaked last week, it would be the most important Supreme Court decision in decades. But does the decision have any impact on the state-based, statutory and administrative world of workers’ compensation?

I think it could when it comes to the use of nurse-case managers and the right to privacy. Case managers will often attend medical appointments with injured workers. Experienced case managers are able to direct medical care in a way advantageous to employers in workers’ compensation cases.  States that have rights to privacy in their state constitutions such as Illinois and Montana, are able to reign in insurance case managers from interfering with the medical care of injured workers in workers’ compensation cases.

But, Justice Alito’s draft opinion in the Dobbs case calls into question the right to privacy under the United States Constitution. In theory, even if a state constitution didn’t expressly contain a guarantee of privacy, an employee could at least at least use a  federal right to privacy to limit the access of a case manager to medical information. But if Roe v. Wade is gone or dead letter law, that option is gone for injured workers.

Red states v. Blue states and the right to privacy

In 2020, I wrote that anti-abortion organizations and elected officials would likely try to block any efforts to impose a state right to privacy in the Nebraska state constitution. I could see that happening in other Republican-dominated red states. But will other “blue” or Democratic-governed states follow Democratic-governed Illinois in guaranteeing a right to privacy in their state constitutions to protect reproductive health and abortion rights? We will see. But if those states did enact right to privacy amendments, they could impact the day-to-day business of workers’ compensation claims in a way that could benefit workers.

Waiving privacy in an injury case?

But even if employees can keep hostile third-parties out of medical appointments in workers’ compensation cases, normally private medical information is usually fair to ask about and disclose in a workers’ compensation case. Nebraska follows the civil discovery rules in workers’ compensation cases which gives employers a lot of leeway to look into medical history and subject injury claimants to medical examinations. Sometimes these inquiries can be demeaning. Employees do have some tools to stop excessive and unreasonable requests for medical information, but if the right to privacy is weakened they have one less tool to protect their dignity in a workers’ compensation claim.

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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Hopefully SCOTUS just sticks to intergovernmental immunity in Hanford occupational disease presumption case

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The United States Supreme Court is set to hear arguments Monday on what is hopefully the narrow issue of whether inter-governmental immunity applies to a Washington state law that creates a presumption of compensability for occupational diseases for workers at the federal Hanford nuclear site.

Under the Supremacy Clause, states can’t tax or regulate federal entities without the permission of the federal government. During the New Deal era, Congress allowed state workers’ compensation laws to apply to workers’ on federal projects.

In United States v. State of Washington, the federal government is arguing the State of Washington is unlawfully discriminating against the federal government by enacting a law that only applies to workers at the Hanford site. The state of Washington amended the statute to apply the presumption to all nuclear workers and is arguing the federal government’s case is now moot.

So why should anyone outside the state of Washington care about this case? Beyond the conflict between state workers’ compensation laws and federal law (what Professor Micheal Duff sometimes deems empty preemption), this case interests me because it places the issue of issue of burden-shifting presumptions in front of the United States Supreme Court.

To be clear, the federal government isn’t contesting the state of Washington can create presumptions. But in the wake of the COVID-19 pandemic, many states created presumptions of compensability for COVID-19 exposure in the workplace because of the difficulty of proving whether COVID-19 was covered under traditional workers’ compensation statutes. Some of the employer/insurer-side of workers’ compensation are complaining about the unfairness of these presumptions. Thankfully, no one from the employer/defense-side has filed an amicus brief in this case.

However, the Workplace Injury Law and Advocacy Group (WILG) filed a brief in support of the Washington law. (I am a board member for WILG) I think the WILG brief does a good job of arguing that workers’ compensation is traditionally a state law concern and that presumptions have been found constitutional by state Supreme Courts. But I have a lingering fear about some footnote, dicta, concurring opinion or dissent that criticizes the idea burden-shifting presumptions in general. While that language wouldn’t be controlling on states, it could certainly be persuasive for parties seeking to challenge presumption 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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Failure of Weil nomination heralds more of the same for federal involvement in workers’ comp.

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Democratic Senators Joe Manchin, West Virginia, joined Kyrsten Sinema and Mark Kelley, Arizona, and 50 Republicans to torpedo the nomination of Professor David Weil to the head of the Department of Labor’s Wage and Hour division.

Weil, who held the same position during the Obama administration, was a critic of gig economy firms like Uber who misclassify workers as independent contractors. Independent contractor status exempts companies from having to comply with wage and employment laws such as workers’ compensation.

Readers of this blog, likely know state workers’ compensation laws determine whether a worker is an employee and that is a separate analysis about what constitutes an employee for purposes of federal law. Readers of this blog also know that Weil likely would have ran into a steel re-enforced concrete wall of the federal judiciary in trying to enforce federal wage and hour laws for the benefit of workers.

But the failure of Weil likely signals that there is likely no substantive federal legislation that will address deficiencies in state workers’ compensation laws. In 1970, Congress established OSHA and authorized National Commission on State Workers’ Compensation Laws in response to concerns over the sufficiency of state workers’ compensation laws. The recommendation of the Commission lead many states to improve workers’ compensation laws for the benefit of workers.

But if the Senate can’t even confirm someone like Weill to the Department of Labor, then it seems unlikely that the federal government will do anything to improve state workers’ compensations laws.

Many lawyers who represent injured workers take Ronald Reagan’s adage about the government to heart in their practices when it comes to federal law. Whether it’s the byzantine workers’ compensation laws for federal employees, the difficulties of ERISA liens, headaches with Medicare in settling cases or what Professor Michael Duff describes as empty pre-emptions around nuclear workers and air ambulances, workers’ compensation plaintiff’s lawyers are often among the most vehement supporters of state’s rights.

But as evidenced by OSHA and the National Commission, the federal government can be a positive influence on workers’ compensation. But for most workers’ compensation lawyers in practice today, federal law and federal agencies are just another hurdle to overcome in getting justice for client’s injured at work. Unfortunately, that reality doesn’t look to change anytime soon.

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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