Will the Biden administration create a federal heat standard?

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Nebraska and much of the western United States have been struck with sweltering temperatures this week. The hot weather serves to remind me that there is still no federal standard for workplace heat exposure.

NBC ran a story earlier this week that updated and explained efforts to create a national standard for heat exposure in the workplace. The Department of Labor, through the Occupational Safety and Health Administration, can implement such a rule. Some states, like California, have implemented rules about heat exposure in the workplace. The California rule seems like it codifies common sense about water breaks and shade.

Hopefully our new Labor Secretary, Marty Walsh a former union leader, implements a heat exposure rule. The Obama administration DOL rejected a heat exposure rule in the blazing hot summer of 2012.

Heat exposure and workers compensation

Nebraska does not have a heat exposure rule like California. However Nebraska workers compensation law covers heat-related injuries. At the very least, workers’ compensation provides some baseline level of regulation for employers when it comes to heat. But compensation in workers’ compensation cases is limited and no amount of money can replace the life of a family member. Additionally, some heat-related injuries like heart attacks have tougher causation standard which make it more difficult for workers or their dependent family members from recovering benefits.

The advantage of an OSHA rule for heat exposure is that means that OSHA can sanction and shame employers who violate the rule.

Workplace heat exposure and climate change

Climate change is expected to raise 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. One argument against a national heat standard is that it doesn’t account for “regional variations” in climate. But if climate scientists are correct, most if not all, areas of the United States will be at real risk for heat-related injuries and illnesses in the future. OSHA and Congress should take action to protect workers.

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

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Yes, your employer can require you to take the COVID-19 vaccine

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Last week the United States Equal Employment Opportunity Commission (EEOC) affirmed that employers could require employees to receive the COVID-19 vaccine so long as they comply with the Americans with Disabilities Act and other anti-discrimination laws,

While most people were happy to receive COVID-19 vaccines, some can’t receive the vaccine because of either medical, religious reasons or pregnancy. Some just refuse to get vaccinated period.

So what options do employees who are unable or unwilling to take the vaccine have on the job?

On the flip side, do employees have legal protections against co-workers or employers who refuse to protect employees from the risk of COVID-19.

Employer-mandated vaccines

The health care industry has dealt with mandatory vaccinations in the context of the flu virus for years. In short, the accommodation, either for medical or religious reasons, was often to wear a mask.

Obviously, some employees refuse to wear masks. In fairness, the use of masks for flu prevention before the COVID-19 pandemic was questioned. There is also a strain of disinformation circulating on social media that goes along the lines of: I have a medical reason not to get vaccinated or wear a mask and under HIPPA no one can ask me for that reason. If they do ask, I can sue them. Another myth involved the 4th Amendment right to privacy which only applies to government and not private employers.

This is a blatant falsehood. Anytime a worker is asking for an accommodation for medical condition, whether a work injury or personal injury, the employee gives up a fair amount of privacy as to that medical condition. Yes, employers are required to reasonably accommodate disabilities under the Americans with Disabilities Act. But in order to ask for a reasonable accommodation an employee often needs to share detailed medical information with their employer.

So in short, if you refuse an employer request to take a vaccine, you need a good reasons and should be able to substantiate it and share that reason with your employer.

I am pro-vaccine. I also believe vaccination policy is a workplace safety issue for reasons explained below. But I feel some sympathy with those subjected to mandatory vaccines at work. Throughout the pandemic, business has denied liability for COVID-19 spread in the workplace. But if the reasons for mandatory vaccinations is employee and customer safety, how can business turn around and argue that they aren’t liable for COVID exposure in the workplace? It seems like the contradiction can be reconciled through employers desire to exercise dictatorial control over their employees in the workplace.

What about workplace safety

This post my seem like I’m being overly sympathetic to COVID deniers and anti-maskers. I’m not. I am very disturbed that these types have taken to social media to attack former OSHA deputy assistant secretary, Jordan Barab, for raising serious concerns about the lack of OSHA guidance in retail workplaces in light of the latest CDC guidance that states vaccinated people can go largely to unmasked indoors.

Workers who are still concerned about COVID-19 exposure are in a difficult spot. While workers in certain industries can sue employers directly for safety violations, workers in the retail industry cannot. They need to rely on state law claims if they want to take direct action. I think one good idea for legislation would be to create a whistleblower act for retail workers.

OSHA is starting to sue employers for retaliating against employees, but those suits are just now starting well over a year into the pandemic. While it’s good that OSHA is starting to bring cases on behalf of employers, OSHA only brings suits in a small number of cases where retaliation is alleged.

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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Is it better that SCOTUS punted on air ambulance cases

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The Supreme Court refused to hear an appeal from a Texas Supreme Court decision that allowed the State of Texas to regulate air ambulance charges in workers’ compensation cases.

The Supreme Court’s refusal to hear the case leaves in place a patchwork of state and federal court opinions about whether the Federal Aviation Act pre-empts state workers compensation laws that limit medical expenses for air ambulances.

Air ambulances and federal pre-emption is a dry and often esoteric, maybe even boring topic. But as Jon Gelman pointed out in his post on the decision, the right to regulate medical expense in workers’ compensation case helps states manage the cost of workers’ compensation. As I’ve pointed out at near ad nauseam, workers’ compensation laws are state-based laws. So, that’s why the air ambulance pre-emption issue matters to workers compensation.

So, what do I think of the Supreme Court’s decision to punt on the issue? Bluntly, I’m kind of relieved. I base my feelings on my big picture views of the Supreme Court and my very narrow interests in Nebraska workers compensation laws.

Do you really want Amy Coney Barrett and friends making decisions about workers comp.?

Well, do you?

From an academic perspective, the Texas Supreme Court decision on workers compensation and air ambulance billing is interesting. It’s really a discussion about the nature of workers’ compensation. Is it primarily an insurance program or is it primarily a law that regulates the relationship between employee and employer? My fear was that the current Supreme Court could pick up on any of the threads within the Texas case and make the law worse for injured workers.

Workers compensation as a law regulating the relationship between labor and management

So, if workers compensation is law that regulates the workplace, the dissent in the Texas decision held that air ambulances charges would be pre-empted. That would be a bad outcome for workers on air ambulance charges. It could also open the door for pre-emption on other issues to the detriment of employees.

Workers compensation as a law regulating insurance

The concurring opinion in the Texas held that their state’s regulation of air ambulance charges in workers’ compensation cases was not pre-empted because workers compensation is a law regulating insurance. Under the federal McCarran-Ferguson Act those laws are state laws and not subject to pre-emption. At least two trial Judges in the Nebraska Workers Compensation Court take this approach. Since the Supreme Court hasn’t weighed in on the issue, I can take this approach on air ambulance charges for the benefit of my clients in Nebraska.

But the Texas court also held that air ambulance charges weren’t pre-empted based on an originalist view of federalism. The Texas opinion starts out about states retaining some sovereignty when entering into the Union. In my view this language seems real overwrought. If I was a law student reading that opinion today, I might put a note like “Sir, this is a Wendy’s” by that passage.

Some plaintiff’s lawyers will go down the state’s rights rabbit hole. But I don’t like the state’s rights approach because it gives states the rights to implement lousy workers compensation laws. Texas is a model for how the state’s rights approach fails workers.

McCarrran-Ferguson: State’s rights lite?

McCarran-Ferguson is a more pragmatic argument against workers compensation pre-emption. But McCarran Ferguson is based on some dubious legal fiction. McCarran-Ferguson was passed to more or less repeal the Southeastern Underwriters case. That case held that insurance was interstate commerce.

Now the notion that insurance is interstate commerce would seem obvious to most people, but insurance wasn’t held to be commerce during much of the Lochner era. The Roberts court also seemed to question whether insurance was interstate commerce when they upheld the Affordable Care Act in 2012.

My other problem with McCarran-Ferguson is that it limits how we think about workers’ compensation.  It locks judges and lawyers into adopting a legal fiction in order to give workers a fair outcome in workers compensation cases regarding air ambulance charges and other issues where federal laws could undercut recovery under state workers’ compensation laws.

McCarran-Ferguson also cements “states rights” thinking about workers compensation. Such thinking precludes the possibility of federal intervention for the benefit of employees that helped workers in the 1970s and 1980s. Originalist thinking and the Lochner era thinking behind McCarran Ferguson by plaintiff’s attorneys also prevents thinking how to make much needed reforms to our social insurance system in general. 

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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Human capital disclosure rule effects being felt in Nebraska workers’ compensation

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Most observers expect newly-confirmed Labor Secretary Marty Walsh, a former leader in the Laborers’ International Union, to focus on workplace safety. But one of the most immediate impacts of a federal executive branch on workplace safety is coming from an unexpected source – the Trump administration Securities and Exchange Commission (or SEC)

This potential boon to workplace safety is known as the Human Capital Disclosure Rule which as enacted in November 2020. A  recent call from a client tells me it could already be having an impact.

The human capital disclosure rule

I got a call from a client who works at Tyson. Tyson stock is publicly traded. The client informed me the plant was offering to pay the unpaid medical bills of their employees who were hurt at work.

My first reaction was along the lines of “isn’t that what workers comp. is for, what are they trying to pull?” (I took out the profanity) But then I remembered this human capital disclosure rule.

The human capital disclosure rule was implemented because 85 percent of corporate costs are “human capital” and if investors want to be able to value companies they need to do know the cost of “human capital.”

If you run a meatpacking company, one major component of human capital costs is the price of work injuries. In theory, you should be able to measure those costs through workers compensation. But things are different in practice.

Cost-shifting

In practice those costs of work injuries get shifted on to health insurance, Medicare, Medicaid, Social Security and private disability. This is largely a function of aggressive claims handling practices that make it difficult for injured workers to get workers compensation benefits.

But if investors want to know the costs of work injuries, even a major food processor wouldn’t be able to measure the cost of work injuries. So, companies are improvising with programs like the one described by my client. These special programs could give employers and investors a better idea about the true cost of medical care from work injuries.

Impact of voluntary payments on workers compensation in Nebraska

Payments for work injuries made to comply with the human capital disclosure rule could impact eligibility for benefits under the Nebraska workers’ compensation act. I would argue that such payments would extend the statute of limitations on a claim if they were paid within two years of the last payment of benefits. A voluntary payment of benefits once the statute of limitations two year statute of limitations had run would not extend a claim.

A different take on the human capital disclosure rule in the Biden administration?

The commentary on the human capital disclosure rule states that employers have a lot of discretion about how to implement the rule. Maybe, the more worker-friendly Biden administration may implement tougher standards to force some employers to more accurately measure the cost of work injuries.

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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Arguments against COVID safety standards in meatpacking sound same in court and in the Unicameral

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Nebraska legislators narrowly advanced legislation, that if enacted, would mandate basic COVID-19 safety measures at meatpacking plants.

State Senator Tony Vargas of Omaha introduced the bill to protect meatpacking workers. According to Vargas, 7382 meatpacking workers contracted COVID-19, 256 were hospitalized and 23 died due to the COVID-19 pandemic.

I support this legislation. Early on in the pandemic, I wrote about why I thought workers’ compensation laws weren’t suited to help workers effected by the pandemic. The bill includes requirements about reporting COVID-19 exposure which would aide in prosecuting workers’ compensation cases related to COVID-19.

But, the bill does not include a presumption of workers compensation coverage for COVID-19 exposure. One would think that relatively mild legislation would face little opposition. But that assumption would be wrong.

Somewhat unsurprisingly the arguments used by opponents of COVID-19 safety measure opponents mirrored arguments made by packinghouses in COVID-related litigation. Some legislators argued that the state should not regulate workplace safety in meatpacking houses because that was the job of the federal government. In short, the state was pre-empted from regulating safety conditions in meatpacking plants.

Tyson Foods made similar arguments about federal preemption in their defense to an Iowa state law case involving a lawsuit against Tyson for having their managers make bets on COVID-19 death tolls in an Iowa plant.

I think the preemption argument is specious because states clearly have the right under the 10th Amendment to make laws about health and safety. That’s the constitutional basis for workers’ compensation laws.

On the flip side, the basis for the federal government to regulate meatpacking stems from the interstate commerce clause. Meatpacking is one of many businesses in Nebraska engaged in interstate commerce. Under the theory advanced by opponents of safeguards for meatpacking workers, the state wouldn’t have the right to regulate those industries either.

Federal and state laws conflict all the time in matters of workplace safety and the effects of workplace injury. Meatpacking plants in Nebraska are largely operated by large multi-national firms with armies of lawyers who comply with all sorts of rules and regulations in different states and countries.  

In my view, the packing plants exploited a gap in workers compensation laws to largely avoid paying COVID-19 benefits under workers’ compensation. The standards proposed by Senator Vargas are reasonable, constitutional and should have passed with little debate last year when they were originally proposed.

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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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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