Somebody get me a doctor: Nebraska rules against P.A reports in workers’ compensation

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Somebody get me a shot! (Sorry no appropriate Diamond Dave images to go with this post)

The Nebraska Supreme Court held recently that a written reports from a Physician’s Assistant or P.A. are inadmissible into evidence under the Rule 10 of the Nebraska Workers’ Compensation Act.

The decision resolves what amounted to a “circuit split” among the seven judges of the Nebraka Workers’ Compensation Court as to whether P.A. reports were admissible into evidence.

The decision didn’t come as a shock to me or any of the other lawyers at this firm. The decision shouldn’t impact how we or any other lawyers develop evidence in Nebraska workers’ compensation cases.

But I believe the decision harms workers in rural areas whose only access to medical care is often a P.A. The decision also harms workers without health insurance whose only treatment for a work injury might be treating with a P.A. at an urgent care clinic. If an employer denies compensability, the only medical evidence that employee may have would be a report from a P.A.

Most lawyers “fix” P.A. reports by having the supervising doctor sign the report. I’ve had P.As take offense at that request. I’ve also had defense lawyers attack medical opinions on hearsay grounds by getting a medical doctor to admit that the P.A. is the one with first-hand knowledge about the injured worker.

Lawyers are stuck with two options if a P.A report is the sole source of expert opinion from a treating provider: 1) Call the P.A. live as a witness in the same manner as in a civil trial or 2) retain an examiner.

Neither of those is a great option. The best fix would be for the Legislature or the Nebraska Workers’ Compensation Court to amend Rule 10 to allow P.A reports into evidence.

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

This entry was posted in Nebraska, Rule 10, Workers' Compensation and tagged , , .

Between a rock and a hard place: Hurt on the job with a non-compete agreement

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Jimmy John’s franchises in Illinois dropped non-compete clauses for their workers as part of a settlement with the Illinois attorney general

The Washington Post reported that janitors are being subject to non-compete agreements. Janitors join some Jimmy John’s franchise employees  as low wage employees who are or who have been subjected to non-compete agreements.

Non-compete agreements can be particularly daunting for injured workers. Oftentimes injured workers will quit the job where they were hurt and move to another job that is physically less demanding.  But a non-compete agreement can add more fear and uncertainty to the life of an injured worker who is already dealing with a work injury.

In Nebraska, non-compete agreements are somewhat difficult to enforce.  Nebraska outlaws restraints of trade by statute  and by case law. But non-compete agreements can be enforceable if they are reasonable in scope – for a limited time and geographic area – and ancillary to a contract of employment.

The general test of whether a non-compete is enforceable in Nebraska is that 1) not harmful to the public 2) not greater than necessary to protect employer’s legitimate interest and 3) not unduly harsh or oppressive to employee.

Courts in Nebraska tend to focus on whether the compete is too broad to protect the employer’s legitimate interest. A non-compete would likely to be held to be unenforceable under this clause if the employee had no personal or business contact with customers or prospective customers, didn’t know or have access to confidential information, has no skills or knowledge different than what they would have acquired in another business and the employer had no trade secrets regarding their industry.

The issue of whether a non-compete is unduly harsh to an employee is a separate issue. My feeling is that a good argument could be made that changing jobs as a way of essentially self-accommodating a work injury would fall into that category. I believe the Zweiner v. Becton-Dickinson East  case would bolster such an argument, but litigation is almost always uncertain and it can be costly. An injured worker looking at the prospect of a workers’ compensation claim may not be willing to take on a non-compete fight as well.

Even a low wage worker who isn’t hurt may not want to fight a non-compete on their own. Jimmy John’s franchises in Illinois only relented on their non-compete for their employees in the face of litigation from Illinois Attorney General Lisa Madigan. While I believe individual workers can fight non-compete clauses, I believe the issue of non-compete clauses and low wage workers would best be addressed in the legislative process. That means voting in legislators who have the best interests of employees in mind and at heart. Pay attention to who those candidates are and vote from them on November 6th.

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

This entry was posted in Nebraska, non-compete agreements, Workers Compensation and tagged , , .

Nebraska, Iowa switch spots in workers’ compensation premium ranking; both states in middle of pack nationally

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Are Nebraska and Iowa taking different roads on workers’ compensation?

Nebraska moved from the 32nd most expensive workers’ compensation insurance premium rates to 26th, while Iowa moved from the 24th most expensive to 30th most expensive workers’ compensation insurance premium rates, according to the 2018 Oregon Workers’ Compensation Premium Ranking produced  by the Oregon Department of Consumer and Business Services.

While Nebraska and Iowa both remained in the middle of the pack nationally, Iowa workers’ compensation insurance rates decreased from 101 percent of the national median from the last study in 2016 to 96 percent of the national median in the current study. In contrast, Nebraska’s workers compensation insurance rates increased from 91 percent of the median rate in 2016, to 100 percent of the median rate in 2018.

In short, workers’ compensation insurance became comparatively cheaper in Iowa while it became comparatively more expensive in Nebraska when compared to other states.

Iowa made many changes to that state’s workers’ compensation laws in 2017, that could explain the relative decline in the cost of workers’ compensation insurance in that state. If the relative price of workers’ compensation insurance in Nebraska and Iowa continues to diverge, I would expect a strong push for workers’ compensation reforms in Nebraska similar to those enacted in Iowa.

In other measures, Nebraska remains a friendly legal jurisdiction for business. According to the pro-tort reform Institute for Legal Reform, Nebraska has the seventh least costly legal system for business.

 

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

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

Injured workers served poorly with AMA “cookbook” on causation

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DON”T GET ON THE AMA CAUSATION GUIDES SHIP!!!

My friends and colleagues on the WILG listserv were discussing the AMA Guides to the Evaluation of Disease and Injury Causation, 2nd edition. The consensus was that the new guidebook treats injured workers, to quote the President, very unfairly.

Lawyers in Illinois and Montana have encountered the AMA Causation Guide. I encountered the causation guide in Nebraska this spring/summer in Tapee v. Nestle (available on NWCC Decision and Order Search by clicking here). My experience was that the trial judge was not impressed by the opinions of an examining expert who relied generalizations from studies rather than looking at the particulars of my client’s injury.

A colleague in Montana seemed to have a similar experience.  Another weakness of the AMA Causation Guides is that doesn’t address the fact that states have different standards for medical causation. For example, even if it’s true that occupational causes aren’t a prevailing factor in causing carpal tunnel syndrome, that doesn’t matter in Nebraska because a worker only needs to show that occupational factors were a contributing factor to the injury.

Even among WILG members, the AMA Guide to Causation is still confused with the better known AMA Guides to Permanent Impairment that have been subject to numerous court challenges. The so-called AMA 6th has long been a target of plaintiff’s lawyers because of how it reduces compensation for many types of permanent injuries. When the AMA 6th came out about 10 years ago, plaintiff’s lawyers were good about educating courts about the problems with the AMA 6th.

Nebraska isn’t bound by the AMA Guides to Impairment, but courts often follow them in determining permanent disability for scheduled member impairment. In 2010, one trial judge criticized the AMA 6th in Endorf v. Chief Industries (click here for NWCC Decisions and Orders Search) But the insurance defense bar was relentless in pushing the AMA 6th and it is often used as a basis to pay permanent impairment in Nebraska despite early misgivings by some workers’ compensation judges.

I suspect the insurance defense bar will be as relentless in pushing the AMA Causation Guides. From discussion on the WILG listserv, it appears as if there is a nationwide push to use the AMA Causation Guides. The AMA Impairment Guides are sometimes referred to as a “cookbook”. (Hence the headline and artwork for this post) But at least in Nebraska where the AMA Guides to Impairment are generally just applied to so-called “scheduled members” that are paid on a loss of use basis, I can see why a judge may rely on those guides. (The distinction between scheduled member disability being paid on a loss of use basis and non-scheduled injuries being paid on a loss of earning power basis in Nebraska seems to be largely a judge-made distinction)

But causation would seem to be a different story. Causation would seem to be an issue that Judge’s would still want to decide on an individualized basis rather than deferring to a book. But prolonged use of the AMA Causation Guides may eventually lead to an informal heightening for medical causation standards by workers’ compensation judges. 

Maybe this is burying the lead, but the more acute danger is that stae legislatures will adopt the AMA Guides to Causation like they did with the AMA Guides to Permanent Impairment.

Plaintiff’s lawyers have some studies they can use to the counter the AMA Guides to Causation. The American Academy of Orthopedic Surgeons have compiled studies about carpal tunnel syndrome that would contradict the studies that form the basis of the AMA Causation Guide. Plaintiff’s lawyers may also want to bone up on rules regarding expert testimony. At least in Nebraska, those rules don’t govern admissibility of medical evidence, in workers’ compensation but they can certainly be helpful to a court in weighing medical evidence.  NWCC Rule 10 narrowly defines who can testify by written report in our workers’ compensation court. In my experience, “non-Rule 10 experts” can make good witnesses for the plaintiff on cross-examination.

Lawyers for injured workers need to see recognize the threat posed by the AMA Guides to Causation and make every available factual and legal argument against its application at every opportunity –whether in a courtroom, a legislative committe hearing, at a legal confernece and/or on social media.

 

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

This entry was posted in AMA Guides to Causation, AMA Guides to Impairment, Nebraska, Workers Compensation and tagged , , , .

Accommodation on the job for amputees draws media attention

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A federal court in Nebraska recently ruled in a case about accommodating a wheelchair bound amputee on the job.

Two recent cases involving Walmart and accommodating workers with amputations have made the news recently.

The EEOC sued Walmart for allegedly failing to hire a Texas woman with an amputated hand as a stocker. Here in Nebraska, a federal district court denied summary judgment in a failure to accommodate claim involving an amputee who used a wheelchair and requested not to wear a long butcher coat because it got stuck in his wheelchair.

The Texas and Nebraska cases both turn on arguments about the failure of Walmart to engage in an interactive process to accommodate a disability. The Nebraska case also emphasized that this interactive process need not be formal which is a point I have made before.

The longer I practice workers’ compensation and employment law, the more I despise bureaucracy. Reading “The Utopia of Rules” by David Graeber in 2015 crystallized my thinking on the topic. In early 2017, I wrote a post about just cutting management out of the accommodation process altogether if possible. I wrote that such conduct would be protected as a protected concerted activity under the National Labor Relations Act. (NLRA)

Well, thanks to Neil Gorsuch’s 5-4 majority opinion in Epic Systems, helping to accommodate the disability of a coworker may not be a protected activity under the NLRA. For now at least, federal courts don’t require that employees have to exhaust administrative remedies within what amounts to a private administrative state in order to accommodate a disability. Courts seem to give more legal power to an individual alleging individualized discrimination rather than employees acting collectively about the terms and conditions of their employment.

In short, employees have some real legal rights on the job so long as they acting as individuals within the frame of anti-discrimination laws. In order to act collectively employees either need to engage in direct action like strikes — which is a whole other topic —  or in the political arena.

 

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

This entry was posted in ADA, amputees, Nebraska, Walmart and tagged , , , , .

I Filed For SSD on My Own and Got Turned Down – What Should I Do Next?

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Today’s post comes from guest author Barbara Tilker, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

If you get a denial notice from Social Security after filing your application for benefits on your own, don’t be surprised. Most people are turned down the first time they apply for benefits. Social Security recently released a study showing that people who filed on their own were slightly more likely to get denied initially, although they received their initial decision a little sooner. Many people make one of two common mistakes when they get turned down – they either don’t do anything or they file a new application. People who don’t do anything will, of course, not receive Social Security disability benefits. Those that file a new application are just as likely to get turned down again, and may lose entitlement to benefits they otherwise would have gotten.

When you get a denial, you should file an appeal of that decision.

When you get a denial, you should file an appeal of that decision. Filing an appeal is different than filing a new application. Depending on where you live, you will either file a request for reconsideration or a request for a hearing. A request for reconsideration means that someone else at Social Security reviews your file and makes a new decision. If you get denied at reconsideration (and about 90% of people do) you should file a request for a hearing.

After you file a request for a hearing, you’ll be scheduled for a hearing held by an Administrative Law Judge (ALJ). The ALJ will ask you questions and issue a written decision after the hearing. People who appear at a hearing before an ALJ are much more likely to get SSD than those who file a new application after getting denied.

Once you receive a denial, you should contact our office right away to discuss your options. You only have sixty (60) days to file an appeal, so it’s important to act fast. Our staff will be able to handle the appeals process for you, and one of our attorneys will appear at the hearing with you. The most important thing is to not get discouraged and continue your medical treatment so that you’ll have the medical evidence you need to prove your disability.

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

This entry was posted in social security disability and tagged , , , , .

A new season for the Shameless economy?

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What’s going to happen on the next season of the Shameless economy?

Amazon made big news on Tuesday when it announced it was implementing a $15 minimum wage for all employees. 

Part of the story was why Amazon raised wages. Some pointed to low unemployment  while others pointed to popular criticism of Amazon’s labor practices. That criticism was expemplied by the Stop BEZOS Act targeting Amezon that was introducted in the Senate by Bernie Sanders.

The author of this blog falls into Amazon critics category. Last November I coined the phrase “Shameless” economy, based on the show Shameless, to describe how Amazon misclassifisied delivery dirvers as contractors.

While Amazon may win applause for raising the wages of employees, by classifiying workers as contractors they are excluding those workers from the benefits of emplyoees like unemployment and workers’ compensation. Amazon annouced this summer that it was expanding its own inhouse package delivery services and looking to contract  with “entrreprenuers”. Contractors aren’t covered by unemployment or workers’ compensation which are beneifts that are mandated by the government.  In other words, Amazon is growing its ranks of contractors which reduces its labor costs while receiving good publicity for raising wages for workers they classify as employees. 

If you watch Shameless you know the character Frank Gallagher. Frank is a terrible drunk and overall person. But occassionally Frank will seem to get his stuff in order only to fall back into his usual antics. Amazon’s labor practices are like Frank Gallagher’s behavior, every once in awhile he will get his stuff together and demand all sorts of credit. But sooner or later, as the millenials say on social media, he is back on his bulls***.

Keep an eye on Amazon.

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

This entry was posted in Amazon, worker classification, Workers' Compensation and tagged , , , , , .