Fighting to protect workers rights

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Workers compensation law is slightly more than 100 years old. It has become a fundamental protection for workers and their families. Sadly, insurance and business interests have been attacking this basic law for more than 25 years. The effort has been nearly continuous with legislative and administrative proposals aimed at lower benefits to workers and their families  while raising profits for business and insurance.

            This law firm believes we have an obligation to fight these attacks on behalf of our clients and their families.  The past week is an example.  Rod Rehm spoke to a group of lawyers  on how to defeat these attacks at the Northwest Regional Conference of the Workplace Injury Law Advocacy Group www.wilg.org held in Whitefish, Montana. The event was attended by Michael Gruber, Brooklyn, NY, current President of WILG, Amie Peter, Edmonds WA, President-elect of WILG, Chuck Davoli, New Orleans, LA past President of WILG and chaired by Tom Murphy of Great Falls, MT along with a hearty group of workers compensation lawyer from the Northwest part of the U.S.A.

            It was great to share information with and learn new and better ways to win our cases and court and continue to defend the law in the legislature. WILG is a great organization fighting for workers 24/7/365 all across the USA.

            Jon Rehm testified at the Business and Labor Committee of the Nebraska Legislature on behalf of the Nebraska Association of Trial Attorneys, NATA,  www.nebraskatrial.com concerning efforts to limit drug prescriptions for our clients. Our office and NATA is concerned that efforts to attack opioid addiction will harm our clients unless written carefully. Protecting good medical care for injured workers is more important than saving prescription costs for business and insurance under the guise of attacking addiction.

            Testifying in the legislature is a regular part of being a lawyer at Rehm, Bennett and Moore. We actively work to protect workers’ rights in every forum we can.

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 drug formularies, NATA, state legislatures, Unicameral, WILG.

Proposed Changes To Iowa Workers Compensation Cruelly Target Elderly Employees

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elderly employeeAnti-worker changes could be coming to Iowa workers compensation. To me the cruelest reform would be the proposal to end permanent total disability benefits at age 67 and limit workers who are over 67 who become permanently and totally disabled to 150 weeks of benefits. One memorable client of mine demonstrates the callousness of the proposed Iowa reforms.

My client Doris Newkirk was 83 years old when she was injured working as a hostess at Lone Star Steakhouse in west Omaha in June 2006. She was near a bathroom door when a large male co-worker came barreling into the bathroom and caused Doris to fall back and injure multiple parts of her body. Like many retirees, Doris worked because she needed the money. After her injury she was unable to work. Fortunately Doris was able to receive permanent total disability benefits to make up for the income she lost because she wasn’t able to work. Those permanent benefits started in September 2007 and continued for five years and 10 ½ months until her death on July 21, 2013.

If Nebraska law limited those injured over the age of 67 to 150 weeks of permanent total disability benefits, Doris wouldn’t have been paid anything for the last three years of her life. To her credit, Doris travelled from Omaha to Lincoln in her late 80s to testify against similar legislation when it was proposed in Nebraska. According the Business and Labor committee clerk at the time, the state Senator who introduced the bill at the behest of insurance interests made a motion to kill the bill after listening to her testimony.

Workers compensation is a cost of business. But according to CNBC, Iowa has the second lowest cost of doing business in the country. Iowa, like Nebraska, generally ranks well in national surveys of business climate. Iowa’s weakest area when it comes to business climate,  according to CNBC, is quality of workforce. Unlike Nebraska, Iowa lacks vocational rehabilitation for injured workers. If Iowa is looking to reform its workers compensation system, they should consider investing in vocational rehabilitation so injured workers can fully regain their ability to contribute to the economy in Iowa.

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 Elder Law, Employment, employment law, Iowa, Nebraska, Workers Compensation and tagged , , .

Three Clues Your Employer Doesn’t Want You To Return To Work After An Injury

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Apologists for Thought leaders in the workers compensation insurance industry like to tout how they want injured employees to “return to work.”  But insurance industry rhetoric about the importance of return to work is belied by at least three common scenarios involving employees with serious work injuries.

  1. Employer requires an employee to resign in order to receive a lump sum settlement for their workers compensation claim: Early on in my career a defense lawyer told me that his client “Didn’t want their employees driving to the plant in an Escalade (this was the mid-2000s) after they settled their workers compensation case.” Putting aside the absurdity of someone who earns wages that would make their kids eligible for free or reduced lunch buying a luxury SUV after they had been off of work for an extended length of time, this practice indicates that some employers really don’t want injured workers to return to work after an injury.A recent discussion over the WILG listserv indicated that resignation as a condition of a workers compensation case settlement was a common practice across the United States. An agreement to resign normally comes as a separate severance agreement. Those settlement agreements may not be binding if an employer doesn’t include the right language in the release which is why an injured worker would want to consult with an employment lawyer or have a lawyer familiar with employment law and workers compensation represent them in their work injury.

    Certain states, like Massachusetts, outlaw the practice of conditioning a settlement on resignation. Even in states where the practice is considered lawful lawyers may consider challenging such practices on the basis of anti-retaliation laws, unfair claims practice laws or causes of action that prevent interference with contractual relationships.

  2. Employer requires employee to return to work with “no restrictions”. 100 percent healed policies are considered to violate the Americans with Disabilities Act by the Equal Employment Opportunity Commission (EEOC) and by some intermediate level federal appellate courts. Regardless of whether the Supreme Court or Congress ultimately decide such policies are illegal, oftentimes a person with an injury that requires surgery and time off from work is going to have some permanent restrictions.Many times requests that an employee return to work without restrictions are sent after an employee exhausts their 12 weeks of FMLA. Oftentimes employers will extend a short amount of unpaid leave in addition to FMLA. When injured employees receive these letters many of them feel like their company is trying to push them out. This feeling can sometimes be correct. That’s why it is helpful to have an attorney who knows how workers compensation and employment laws intersect.
  3. Employer suggests that employee apply for private disability for a work injury: Private short-term (STD) and long-term disability (LTD) policies can be helpful to employees. Some policies even allow employees to collect both LTD and STD with workers compensation benefits.But some employers will push employee onto disability because it is cheaper than paying workers compensation benefits. Even more insidiously if an employee stays off work long enough that they are eligible for long term disability, some long-term disability policies require that employees apply for social security disability or SSDI in order to continue receiving LTD. Many of these policies hold if an employee receives SSDI they need to payback the LTD insurance company for the time that SSDI and LTD benefits overlapped.

    I ran into a policy like this representing a client in a disability discrimination case. Courts have questioned the legality of these policies as well. If you are stuck in a situation where you are applying for long term disability because of a work injury and being forced to apply for SSDI, you should consult with a lawyer who is familiar with workers compensation and SSDI.

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

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

Age Discrimination Claims in Workers’ Compensation Settlements?

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Today’s post comes from guest author Anthony L. Lucas, from The Jernigan Law Firm. The post addresses why some severance agreements may not be enforceable. Often times a workers compensation case will involve employment law issues, which is why an injured worker should consider consulting an attorney who is knowledgeable in both areas of law.

When an employee settles a workers’ compensation claim, the employer often wants to terminate the employee and is cautious because of potential age discrimination. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. (2015), prohibits companies with 20 or more employees from discriminating against a person (40 years of age or older) because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

An individual who has been discriminated against because of his or her age may be entitled to back pay, reinstatement, hiring, promotion, front pay, liquidated damages, and court costs and attorney fees.

To avoid potential discrimination claims after a workers’ compensation settlement, the employer often seeks an ADEA waiver at the same time. For an ADEA waiver to be enforceable, it must:

  • Be in writing and understandable;

  • Specifically refer to ADEA rights or claims;

  • Not waive an individual’s future rights or claims;

  • Be in exchange for valuable consideration in addition to anything of value to which the individuals is already entitled;

  • Advise the individual to consult with an attorney before signing the waiver;

  • Provide the individual with a certain amount of time to consider the agreement:

    • 21 days for individual agreements

    • 45 days for group waiver agreements

    • A “reasonable” amount of time for settlements of ADEA claims

  • Provide a period of at least 7 days following the execution of the agreement, in which the agreement is not effective or enforceable, in which the individual may revoke the agreement.

Some termination agreements may not be enforceable, and the individual may have a valid claim to pursue under the ADEA.

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 Age Discrimination, Workers' Compensation and tagged , , , .

Opioid Task Force, Recent Studies, and CDC Opioid Recommendations

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Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm. Nebraska is considering legislation to implement drug formularies to control opioid use among injured workers. I believe Nebraska should consider Massachusetts program of essentially having a workers compensation drug court to deal with opioid use.

The North Carolina Industrial Commission recently joined many other states (i.e. Massachusetts) in tackling the issue of opioids in the workers’ compensation cases by creating a Workers’ Compensation Opioid Task Force. The goal of the task force is to “study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims.” According to the Chair, “[o]pioid misuse and addiction are a major public health crisis in this state.” 

As of last June, a study by the Workers’ Compensation Research Institute (WCRI) noted “noticeable decreases in the amount of opioids prescribed per workers’ compensation claim.” From 2012 – 2014, “the amount of opioids received by injured workers decreased.” In particular, there were “significant reductions in the range of 20 to 31 percent” in Maryland, Massachusetts, Michigan, Oklahoma, North Carolina, and Texas. 

Additionally last March, the Centers for Disease Control and Prevention (CDC) issued new recommendations for prescribing opioid medications for chronic pain “in response to an epidemic of prescription opioid overdose, which CDC says has been fueled by a quadrupling of sales of opioids since 1999.” 

Currently, the CDC’s recommendations for prescribing opioids for chronic pain outside of active cancer, palliative, and end-of-life care will likely follow these steps:

1.  Non-medication therapy / non-opioid will be preferred for chronic pain.

2.  Before starting opioid therapy for chronic pain, clinicians should establish treatment goals and consider how therapy will be discontinued if benefits do not outweigh risks.

3.  Before starting and periodically during opioid therapy, clinicians should discuss with patients known risks and realistic benefits of opioid therapy. 

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 CDC, centers for disease control and prevention, chronic pain, Health, opioid, task force, work comp, Workers' Compensation and tagged , , , , , , , .

Look To Your Co-Workers Before Your Boss When Trying To Accommodate An Injury Or Medical Condition

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Employees with an injury or medical condition that prevents them from doing  parts of their job ought to consider asking for help  from their co-workers  first before they talk to management about how to accommodate that medical condition or injury.

Under the Americans with Disabilities Act, and most parallel state laws, a disabled employee and their employer are supposed to engage in an “informal interactive process” to see if the employee’s disability can be reasonably accommodated. The process is supposed to be flexible.

In reality often times the interactive process can be an adversarial process where legal counsel for the employer,  HR,  employee health and risk management bureaucrats attempt to force working people to fill out complicated paperwork and create a paper trail justifying terminating an employee.

But if an employee can work with a co-worker or co-workers to shift and trade tasks that they can’t do because of a disability, then the employee has accommodated their own disability without having to deal with a squad of paper pushers who know little about how an employee actually does their job.

The other thing an employee does when they work with their co-workers to accommodate their own disability without interference from management is that they engage in what is called a “protected concerted” activity. So in addition to having legal protections under the Americans with Disabilities Act, the employee has protections under the National Labor Relations Act (NLRA) as would  their co-workers.

Employees are faced with judges and government agencies who are increasingly sympathetic to management. But workers are re-discovering the power of concerted action. New York taxi drivers struck in protest of President Trump’s proposed Muslim Ban. Workers at Comcast walked out of work in protest of this policy as well.

I realize that many of my prospective and current clients may support Donald Trump and his policies. But regardless of your political views you can still ask for and provide mutual aid and support from your co-workers if you or one of them has a disability that keeps you or them from doing certain tasks on the job. This idea of mutual aid and support for co-workers on the job has long been an important part of workplace rights and will probably grow increasingly important and as courts and government agencies become increasingly supportive of management.

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 Uncategorized.

Welders Exposed To Increased Risk Of Parkinson’s Even If Manganese Within Legal Limits

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Welders have an increased risk of Parkinson’s even if manganese exposure is within legal limits according to a recent article in the on-line journal Neurology, which is the journal of the American Academy of Neurology.

Welders who did flux core arc welding in confined spaces were particularly vulnerable to Parkinson’s according to the study. Workers in Nebraska who would attempt to get compensation for manganese exposure would face problems if the onset of symptoms happened after an employee stopped working. A court case in Nebraska held that an employee who didn’t experience symptoms of an occupational disease until after he retired was not entitled to be compensated because he wasn’t earning wages when the injury manifested. Welders and others who are exposed to manganese on a regular basis should recognize the early symptoms of Parkinson’s such as tremors, difficulty sleeping, constipation and loss of smell and report these symptoms to their doctors and employers as soon as possible so they can be treated under workers compensation and receive workers compensation disability benefits.

The study comes on the heel of a final flurry of OSHA rule making at the Obama administration. In May 2016 OSHA finally adopted a silica exposure rule for workers exposed to sand particles which can cause lung problems. Earlier this month OSHA lowered exposure thresholds for berrylium which is another pulmonary hazard, particularly for construction workers.

The example of beryiluim could explain why exposure to manganese levels at supposedly safe levels can lead to occupational disease. Those supposedly safe levels of exposure may not actually be safe. Another explanation about why supposedly safe levels of manganese lead to Parkinson’s could be found in the practices of the coal industry. Howard Berkes of NPR and Ken Ward Jr., author of the excellent Coal Tattoo blog for the Charleston (WV.) Gazette Mail teamed up to report on how coal companies would fudge coal dust level testing to make it appear that miners were exposed to much lower levels of coal dust than they were actually exposed.

OSHA’s rules could also be reversed by Congress under the Congressional Review Act. In 2001, the OSHA ergonomics rule that would have reduced musculo-skeletal injuries was reversed under this law.

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

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