Watch your body clock and time clock for a safe and fair “fall back”

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Early last week most of us felt a little dazed and tired from the end of daylight  savings time. But will that time change lead to more injuries and some workers getting shorted on their paychecks?

The end of daylight savings time and workplace safety

Studies show that daylight savings time in the spring leads to an increase in work injuries. While no studies have been done on the end of daylight savings time, experts state that any changes to the bodies ciciadian rhythms can lead to lower concentration, which can increase the risk of work injury. In short, if you feel a little off in the days after daylight savings time, your chances of injury on the job increase.

Fatigue leads to injuries. The risk of fatigue-related injury at work tends to increase in November and December as many workers take on increased hours or second jobs during the holiday season.

The time shift and wage theft

A tweet from a high-profile New York congresswoman reminded workers who work overnight to check their paystubs as sometime computerized timekeeping records will miss time shifts. Workers in human services, transportation and retailing would be particularly vulnerable to this form of wage theft.

Proving up actual unpaid time is one of the biggest challenges for employees when it comes to wage and hour law. The United States Department of Labor has an app callled Timesheet which allows workers to monitor their own hours.  The law favors employees who bring wage and hour violations to the attention of their employers in a prompt manner.

The federal Fair Labor Standards Act (FLSA) also includes anti-retaliation provisions which protect an employee who brings up a potential wage and hour violation to their employer.

While one hour of unpiad wages would be a small amount of money, an employer would not be able to plead a de minimis defense. That defense only applies in pre and post shift activities. Workers can join together in collective action cases under the FLSA. This allows workers to join together for relatively small amounts of wage loss. But workers are forced to opt-in or affirmatively join those cases. The opt-in provision works to limit the actual damages payable in these cases. I am involved in a collective case now where about 1/10 of the eligible workers decided to opt-in.

Up until 2018, I think it would be fair to say that workers who banded to together to address unpaid wages would also be covered under the National Labor Relations Act. (NLRA) In the wake of the Epic decision, I have some doubts about whether that activity would be protected. The Epic decision also gave employers the ability to take away the right of employees to join together to sue the employer for wage violations.

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.

This entry was posted in Employment, Wage and Hour, Workers Compensation and tagged , , .

Misclassification stymies efforts to measure cost of work injuries

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Workers’ compensation courts do more than just decide workers’ compensation cases. Workers’ compensation courts also collect information about work injuries that is public information. But what happens when workers are classified as independent contractors?

Recently three U.S. Senators found out how difficult it was to find out information about work injuries for independent contractors when Amazon refused to provide information about injuries to drivers contracted with Amazon.

In Nebraska, employers are required to report injuries to the Nebraska Workers Compensation Court and those records are public record. These reports, called First Reports of Injury, at least provide some basic information about the number and nature of injuries.

The fact that First Reports are public is somewhat controversial. Opponents of making first reports public argue the workers’ compensation court is disclosing private health information. Many also find the practice of plaintiff’s attorney using the reports for marketing purposes distasteful.

On the flip side, if insurers and employers always treated their injured workers fairly and lawfully, they wouldn’t call lawyers. Secondly the availability of information about work injuries can help legislators and other policy makers improve workplace safety.

Employer advocates may argue that employers have an incentive to make their workplaces safe because of cost. But when employers, like Amazon, make their workers independent contractors they don’t provide workers’ compensation benefits. This shifts the cost of work injuries onto workers  and society as a whole. When companies classify their workers as independent contractors it is difficult even for powerful United States senators to determine the true cost of work injuries.

State workers’ compensation courts do important work in tracking work injuries. But as readers of this blog know, workers’ compensation laws are state-based laws. What may be a reportable injury in one state might not be reportable in another state. OSHA Rules 300 and 301 create a national standard for when an injury is recordable. But a rule that would have strengthened reporting requirements under OSHA was overturned through the Congressional Review Act. (CRA)

Many rules adopted by the Department of Labor during the Obama administration were overturned through the CRA. Reporting by Mike Elk at Payday Report revealed the dithering by the Obama administration on workplace safety that allowed Congressional Republicans and the Trump administration to overturn these rules.

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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Do court rules make it harder for PTs to manage pain in workers’ compensation cases?

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Physical therapists are playing an increasing role in pain management in workers’ compensation as the prescription of opioids has been curtailed over concerns over abuse of those drugs. But at least in the Nebraska Workers’ Compensation Court, physical therapists (PTs) may not be able to meet their increased responsibilities due to their ambiguous status as experts under court rules.  

Nebraska Workers Compensation Court Rule 10 holds that the court may admit reports from physical therapists but are not required to admit those reports as expert testimony.

This ambiguity creates confusion about what a physical therapist can testify to through written report in the Nebraska Workers’ Compensation Court. If physical therapists are going to take the lead in treating chronic pain this could mean that a medical doctor would have to ratify the suggestions of a PT when it comes to treating pain for those recommendations to have any weight in the court.

Physician-ratification of functional capacity evaluation tests performed by PTs amounts to an informal requirement for the appointment of a vocational rehabilitation counselor for a loss of earning power evaluation. I’ve written about the gap or squeeze in workers’ compensation cases when injured workers can go for weeks or even months without receiving either temporary or permanent benefits. In my experience the practice of requiring doctor endorsement of FCE results delays the payment of permanent disability benefits and often burdens injured worker with additional expenses.

I believe the requirement that doctors endorse the recommendations of physical therapists would also serve to delay and make it more costly injured workers to get treatment for chronic pain recommended by physical therapists. Additional delay and cost could make pain management without the use of opioid drugs more difficult.

Lawyers for injured workers in Nebraska should not accept the practice of physician-endorsement of physical therapist reports. I had some recent success in getting a loss of earning power ordered based just on FCE results. (Feel free to contact we directly for a copy of the order) But even in that hearing I made sure that those FCE results were endorsed by a doctor.

The plaintiff’s bar should also look to the legislature or the Nebraska Workers’ Compensation Court rule making process to allow the use of PT reports without doctor-endorsement. Last year the court rejected an effort to allow physician assistants to testify by Rule 10 report by a 5-2 margin. There may be a better chance for physical therapist reports to admitted on the same basis as doctors as physical therapists are already included in the language of Rule 10.

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.

This entry was posted in Nebraska, Workers Compensation and tagged , , .

How is workers’ compensation different for top draft picks?

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New Orleans Pelicans forward, Zion Williamson (The Athletic)

It’s hard to imagine an injured highly paid professional athlete as a workers’ compensation claimant. Their wealth shields them for many of the difficulties an injured worker can experience. But their experience as injured workers gives the public insight into the some of the challenges faced by injured workers.

New Orleans Pelicans forward and NBA top draft pick, Zion Wiliamson, injured his right knee in the preseason.  Here are few takeaways on the injury and its media coverage from the perspective of a workers’ compensation lawyer.

New employees are more likely to get hurt – Studies show that new employees are more likely to get hurt on the job. In this respect Zion Williamson is similar to many other new employees.  Injuries to new employees pose all sorts of issues for injured workers. How do you calculate workers’ compensation benefits? What if you have to miss time from work? Williamson likely doesn’t have those problems for a few reasons.

Average weekly wage A major issue for new employees is how to calculate the amount of their workers’ compensation benefits. Even if Williamson wasn’t making millions of dollars, this wouldn’t be a problem for him because he has an actual employment contract that states how much he is to be paid. 

Leave for the injured new employeeA typical employee at-will employee isn’t required to be granted leave until they have been employed for one year.  That assumes the employee is covered by the Family Medical Leave Act. But Williamson is covered by a contract with the Pelicans. He is also covered by a collective bargaining agreement through the NBA Players Association. So unlike the typical new at-will employee hurt on the job, Williamson likely has the time to recover from his work injury without having to worry about losing his job.

Pre-existing injuries and uncertainties over reporting – Williamson injured his right knee playing for Duke in February 2019. At least according to press reports, there is some question about the right knee injury occurred. Nonetheless, I would assume the Pelicans will pick up Williamson’s medical care through workers’ compensation.

But if you aren’t an elite-level NBA power forward and you tell your employer you aren’t sure how you hurt your knee, but you know you hurt it eight months ago, don’t be surprised if workers’ compensation doesn’t cover that injury.

On the off chance the Pelicans deny Williamson’s workers’ compensation, claim based on causation and/or the definition of accident, Williamson probably would have the money to cover his medical treatment. Most other injured workers lack that ability.

As an aside, if it was determined that Williamson’s knee injury was caused by his play at Duke, those injuries would not be covered by workers’ compensation. Eventhough the NCAA recently allowed student-athletes to make money through endorsements, they aren’t employees who are entitled to workers’ compensation.

General ignorance of workers’ compensation – I like basketball but I don’t follow it closely. I didn’t find out about Williamson’s injury until I saw an article in The Onion entitled “Pelicans HR Informs Zion Williamson Knee Surgery Not Covered Until 90 Days Into First Season.

Employers are required to carry workers’ compensation and employees are covered by workers’ compensation on their first day of work. The Onion is satire but it’s fairly typical of the misunderstanding of workers’ compensation by the media and entertainment industry. California’s Assembly Bill 5 is often described as a bill that provides sick leave and health insurance to gig economy workers. Sick leave and health insurance often aren’t required benefits, but workers’ compensation is a mandatory benefit. AB5 expands workers’ compensation to gig economy workers.

Wall Street Journal columnist Andy Kessler was griping about AB5 in a recent column. Kessler didn’t mention workers’ compensation in his column. Any pundit opining about AB5 who doesn’t understand the fundamentals of employee benefits, should be discounted or ignored.

 

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.

This entry was posted in FMLA, Workers Compensation and tagged , , .

Why it matters how your employer insures for workers’ compensation

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Does it matter whether workers’ compensation benefits are paid directly by an employer or by an insurance company? I think it does.

Here is what injured workers should know about self-insured employers in Nebraska and how self-insurance can affect their workers’ compensation claim.

What is self-insurance?

Self-insurance means an employer pays workers compensation benefits directly from company funds. Typically an employer pays premiums to an insurer who pays out benefits.

Because self-insureds bear the entire cost of a work injury they tend to be more hands on in managing workers compensation claims. Many self-insurers have internal workers compensation coordinators who communicate with doctors and go to medical appointments with workers.

How to know if your employer self-insured for workers compensation?

You can skip to the end of this post and check. You can also call the Nebraska Workers’ Compensation Court at 402-471-6468. But if you are calling an someone in a risk management department at your employer about benefits, your employer is probably self-insured

Some self-insureds contract out to third-party administrators such as Gallagher Bassett and Sedgwick. (Sedgwick was criticized for giving Iowa Governor Kim Reynolds a ride to an Iowa State bowl game in a company jet.)

How does self-insurance effect your claim?

Most employers who are self-insured for workers compensation are also self-insured for health insurance. Typically, health insurance will shift the costs of work injuries onto workers compensation insurance. But when an employer is paying for both health and workers compensation insurance, employers will try to shift the cost to the least expensive form of insurance. Usually it costs the employer more to pay through workers compensation than it would through health insurance.

More importantly employees often incur significant out of pocket costs of injuries are shifted onto health insurance.

Self-insurance may also impact settlement value. Any employer that is self-insured for both workers’ compensation and health insurance typically values future medical benefits less than an insurance company. Self-insureds argue that they will bear the cost of the injury either through workers’ compensation or health insurance.

Interaction with employment law

As mentioned earlier, self-insureds tend to be more hands on in managing claims. I believe this can make such employers more vulnerable to retaliation claims as terminations are often used as an excuse to reduce or not pay workers’ compensation benefits. Self-insureds are also more apt to ask for so-called global releases of workers’ compensation and employment law claims. Global releases often require the employee to resign their employment. Often times a resignation is the only way that an employee can get fair settlement value for future medical care if they are employed with a self-insured.

Differences in regulation

Workers compensation insurance is regulated by the Nebraska Department of Insurance. Self-insureds are subject to regulation by the Nebraska Workers’ Compensation Court. The court regulates both claims practices and the solvency of self-insureds at NWCC Rules 69-76.

The risk of bankruptcy is another important difference between self-insureds and employers who carry outside insurance. If an employer goes bankrupt, the employee is still covered by workers’ compensation insurance. If a workers’ compensation insurer goes bankrupt, then a guaranty fund should pick up coverage. But if a self-insured goes bankrupt, the injured worker is less likely to get full compensation.

Who is self-insured for workers’ compensation in Nebraska?

Here is a list of approved self-insureds from the Nebraska Workers Compensation Court.

 

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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Blog roundup: Drug testing for unemployment benefits is law by Facebook meme

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Some of my blogging is based off reacting to what other bloggers write. I read two posts from other midwestern bloggers that merit some quick discussion.

Wisconsin Unemployment Blog — The United States Department of Labor published a new rule allowing states to drug test unemployment applicants. This is dumb for a lot of reasons.

Drug testing as a condition receiving a government benefits is essentially making law based on the memes shared by your aunt or uncle on Facebook. When some states tried drug testing for government benefits, the amount of positive results was minimal and the cost of drug testing far exceeded the savings in denying benefits.

Secondly, this policy assumes unemployment is welfare or an unearned benefit. This is false, employers have to pay unemployment taxes. So employees can only receive benefits if employers have paid benefits on their behalf.

Finally conditioning receipt of unemployment benefits on conduct not connected with employment, undercuts the whole idea of unemployment insurance. I’ve written earlier that I believe that unemployment insurance is one of the strongest and most overlooked factors pushing against the influence of the employment at-will doctrine. Drug testing unemployment applicants weakens those protections.

Ohio Employer’s Blog — For the sake of my employment law practice, maybe I should emulate Bo Pelini and move from Nebraska to Ohio.   Ohio has no exhaustion of remedies requirements and a six-year statute of limitations on discrimination claims. Another Jon, Jon Hyman, thinks this is terrible and is glad Ohio is considering legislation to shorten statute of limitations on employment law claims in Ohio and require administrative filings in discrimination cases.

In my view, exhaustion of remedies amounts to private sovereign immunity for employers. Forcing employees to file administrative charges can also lead to severe delays in investigating claims if civil rights agencies are underfunded. While it is true that civil rights agencies can helps settle or conciliate claims, my experience is that it helps to do some investigation before conciliating or settling a claim. If claims aren’t being investigated conciliation is often futile. Secondly conciliation often takes considerable staff time that could be better used in investigating cases

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.

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

The problem with workers’ compensation award ceremonies

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Recently three injured workers were honored at the Comp Laude Gala put on by trade publication Workers’ Compensation Central. The event included a panel with the catastrophically injured workers who overcame their injuries.

Individually the stories of these workers are all inspiring. The Comp Laude Gala should also be credited for giving these workers a place to voice their stories. Too often workers’ compensation lawyers and the insurance industry either talk to or talk about injured workers. It is good to hear their perspective.

But the idea of an event dominated by the workers’ compensation insurance industry giving awards to injured workers bothers me for two reasons — the types of injured workers recognized are atypical and focusing on individuals ignores legal and political issues that impact injured workers and workers’ compensation laws.

Award winners aren’t representative of injured workers as a whole

The Comp Laude Awards recognized workers who were catastrophically injured. Catastrophic injuries and death claims are different than your typical workers’ compensation claim in that it is less likely compensability and nature and extent of injury will be disputed by the insurer. These workers and their families are less likely to have a bad experience with a workers’ compensation insurer or claims administrator.

Catastrophic injury and death claims are more likely to involve third-party liability cases. Injured workers with a viable third-party case have a better chance of being compensated adequately than an injured worker stuck with just workers’ compensation. 

In his post about the Comp Laude injured worker awards, blogger Bob Wilson classified the award winners as advocates. Other types of injured workers were either adversaries or addled types who are less likely to accept their new condition and less motivated to improve their conditions. There is some validity to these classifications. But as other observers have pointed out everyone deals with trauma differently. Heroism should not be the standard that injured workers are held to when it comes to recovery from an injury.

Maybe the industry doesn’t believe that heroism should be the standard for injured workers. But the Comp Laude awards seem to signal that workers with more mundane injuries workers’ compensation injuries that they don’t have it so bad and they should suck it up.

Ignoring the social and political context of work injuries.

Wilson pointed to two police officers who were back to work after catastrophic injuries. It takes time, usually a lot longer than the 12 weeks allotted by FMLA, to recover from a serious work injury. But police officers are usually represented by unions and union workers usually have more generous leave policies that allows them the time to recover from work injuries and return to work. Union contracts also give employees more leverage in accommodating a disability beyond what they have under the Americans with Disabilities Act. But the role of organized labor in injury recovery seems to be ignored in stories that focus on individual heroism.

Focusing on individual tales of “resilience” also diminishes the importance of injured workers and their families taking actions to change laws to improve workplace safety and workers’ compensation laws.  At least for the Comp Laude awardees, workers’ compensation laws seemed to work fairly well. But for no amount of money can replace the life of a family member killed in a work injury. The families of workers killed on the job have started organizing and advocating for workplace safety through United Support and Memorial for Workplace Fatalities (USMNF)

In the Canadian province of Ontario there is an injured workers group active in advocating for injured workers to improve workers’ compensation laws. Injured workers have also taken to protesting that provinces workers’ compensation board through the Occupy Wall Street-inspired organization Occupy WSIB. Sure Occupy Workers’ Compensation would be considered radical by Comp Laude Gala attendees and even by some plaintiff’s attorneys. But the spirit of Occupy speaks to the anger and disaffection felt by many injured workers — the so-called adversaries and addled.

Injured workers who fight for themselves and others in the political arena are advocates in the true sense. Workers’ compensation professionals, whether they represent employees or employers deal with the anger of injured workers on a regular basis. These workers don’t need lectures about mindfulness or acceptance. They need a way to channel their legitimate anger in a productive way to change workers’ compensation laws. Injured workers and their families are starting to do this across North America. Merely celebrating resilience among a select set of injured workers will not improve workplace safety or workers compensation 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.

This entry was posted in Workers Compensation and tagged , , , .

Air ambulance charges continue to vex

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Concerns about air ambulance charges have migrated from the tiny niche of workers’ compensation blogs to national publications such as the Los Angeles Times.

Media outlets featured coverage of families were stuck with hefty medical bills when health insurance failed to come anywhere near paying the cost of air ambulance charges leaving consumers with charges approaching $50,000.

Air ambulances are exploiting a loophole in insurance regulation. Insurance, including health insurance and workers’ compensation, is regulated by states. But air ambulances are regulated by the Federal Aviation Administration. Air ambulance companies have been mostly successful in persuading courts that since they are regulated by the federal government, state insurance laws should be pre-empted and not applicable to them when it comes to their charges.

Many of the challenges to applicability to state laws in air ambulance charges have come from workers’ compensation cases. Workers compensation laws are state laws because the federal government had very limited power to regulate the workplace when workers’ compensation laws were enacted early last century.

Back in January I wrote about a new federal regulation that might allow some regulation of air ambulance charges. I still believe that the fact there is now some regulatory guidance on air ambulance charges may strengthen the case on preemption. The best fix to air ambulance charges may be federal legislation.

Nebraska recently enacted legislation that allows injured workers to delay the collection of unpaid medical bills that are part of a workers’ compensation case. I would imagine air ambulance companies will attempt to use preemption arguments to blunt the effects of that law in workers’ compensation cases.

Air ambulance charges are a subject of high interest to lawyers in Nebraska and other rural states. Injury victims in rural areas often require air transportation for emergency medical conditions. Air ambulance charges are often complicate the resolution of workers’ compensation and personal injury cases

Federal preemption of air ambulance charges adds other insults to injury to rural residents and rural states. Air ambulance providers base their preemption arguments on the same law that deregulated commercial air travel. Airline deregulation greatly reduced commercial air travel in rural areas to the detriment of economic development and quality of life. So the same law that largely took away commercial air service from rural areas serves to soak rural residents who suffer serious injuries and illnesses.

If nothing else maybe air ambulance carriers should be subsidized through the Essential Air Service program so that their services are not unduly expensive to rural residents.

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.

This entry was posted in Nebraska. workers' compensation and tagged , , , .