Small Businesses Don’t Have Workers’ Compensation Insurance

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Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

In a new study by Insureon, less than 1 in 5 small businesses carry workers’ compensation.  Although all State regulations require that small businesses have workers’ compensation, this study indicates that workers’ compensation is the least purchased insurance by small businesses.  (In Wisconsin, employers must have workers’ compensation if they hire only one employee paying more than $500 in a quarter or hire any three employees at any one time.)  The President of Insureon Jeff Somers said in an interview with workerscompensation.com that “small businesses often fail to carry workers’ compensation because they truly do not understand their insurance need; there is a major lack of awareness and education which insurers and brokers can alleviate.  One reason for this protection gap is a misplaced anxiety around how much workers’ compensation coverage actually costs, but when you compare the small price. . . the protection workers’ compensation provides makes an investment worth it.”

According to the Bureau of Labor Statistics, almost 3 million workplace injuries were reported by private industry employers in 2016, with nearly one-third resulting in time away from work.  The Insureon statistics showed that one in three businesses reported an incident that could have been covered by a workers’ compensation insurance policy and that one-fifth of all small businesses that filed for bankruptcy in 2016 did so because of lawsuits.  Workers’ compensation protects an employer from a lawsuit.  (In Wisconsin a worker injured by an uninsured employer has access to the Uninsured Employers Fund.  After the Fund pays workers’ compensation benefits, the Fund then pursues reimbursement from the employer.)

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 Insurance, Workers' Compensation, Workplace Injury and tagged , , .

Irregular shifts complicate workers’ compensation claims

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Irregular work hours, driven increasingly by automated scheduling, have lead San Francisco and Seattle to pass municipal ordinances to regulate the practice because irregular schedules make child care, transportation and working multiple jobs increasingly difficult for low wage workers.

Irregular hours also increase the risk of work injury and they can complicate the claims of injured workers.  Here are a few ways irregular working hours can impact a workers’ compensation claim:

Benefit rates

Workers compensation disability benefits are paid based on a workers’ average weekly earnings or their average weekly wage – AWW for short. But when you work 40 hours one week and eight the next, what’s your average work week? Mathematically, in this scenario the average week would be 24 weeks. An insurance company would likely use a simple average.

But under Nebraska law a court is supposed to exclude abnormally low weeks from the calculation of average weekly wage. In other words if the case is pushed into court, a Judge will exclude abnormally low weeks which would lead to a higher benefit rate.

Many employers also pay shift differential where night and weekend shifts get a higher hourly wage. Effective hourly wages can vary from week to week for employees who work irregular shifts that include night and weekend shifts.

Nebraska excludes overtime premium in general from AWW, but shift differential still counts. Sometimes insurance companies will exclude shift differentials from their calculations of average weekly wage. This is particularly true when insurers are calculating permanent disability benefits.

It is also common for workers who work irregular shifts to work less than 40 hours a week. For the sake of permanent disability benefits, Nebraska assumes a minimum of a 40-hour work week . Insurers will often not follow this rule. Irregular shift workers are not the only workers who are subjected to this practice, but when you combine exclusions of shift differential along with not using a 40-hour week, irregular shift workers can get substantially underpaid when it comes to workers compensation.

Our firm, like most other firms, represents injured workers on a contingent fee basis. The problem with that arrangement is that while an under payment of benefits may be a meaningful amount of money to an injured worker, it may not be enough for an attorney to justify taking on an underpayment claim on a contingent fee basis. Most state and federal wage and hour laws allow for fee awards that can be many times the unpaid wages. The reason for attorney fee awards in this case is the important public purpose of these laws.

Workers compensation has the same general purpose of as wage and hour laws, but in Nebraska it is difficult to get attorney fees in a disputed workers compensation case because an award of penalties requries a lack of a reasonable controversy. Conventional wisdom is that employees must show a lack of reasonable controversy to win attorney fees. However, some case law seems to distinguish the standard for winning a penalty versus winning an attorney fee.

Medical appointments

Irregular shifts also make it difficult to schedule medical appointments. This is particularly true of specialists who would be treating a more serious work injury. Missing appointments can be a red flag for judges, doctors and insurers if not explained. A good attorney can help an injured worker explain how an irregular work schedule prevented them or interfere with the. from attending medical appointments.

 

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, Workers Compensation and tagged , , , , , .

Employee Workers’ Compensation Fraud? No – Employer Fraud Rampant.

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Attorney Leonard Jernigan compiled a list of the biggest workers’ compensation frauds

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

My friend and colleague Len Jernigan has again compiled the Top 10 Workers’ Compensation Fraud Cases for 2017.

 His results emphasize a theme that has been present for the last dozen years during which he has been compiling a “Top 10” list.  This year the Top 10 non-employee fraud cases resulted in fraud totaling just under $700 million.  Employee fraud cases resulted in zero fraud.  Seven of the Top 10 cases were from California, two from Texas, and one from Tennessee.

The cases involve health care fraud, where doctors prescribed inappropriate medications to pharmacies they operated, overbilling schemes for durable medical equipment, mail fraud, kickback schemes, referral of patients for unnecessary care, and prescribing unnecessary treatment.

A recurring theme, falsifying documents and under-reporting payroll to workers’ compensation insurance companies also appeared in the Top 10.  In one notorious case, the owners of a hotel hid the existence of 800 housekeeping and janitorial workers to avoid paying workers’ compensation insurance rates and payroll taxes.  The list also contains references to dishonest employers misclassifying more and more workers as independent contractors.  This misclassification is a fraud that wrongfully denies these employees workers’ compensation when injured, denies the government millions of dollars in payroll taxes to support Medicare, Social Security, Unemployment Compensation, and the fundamental rights of the workers.  Simply put, this misclassification is another employers shift the cost of accident and injury to the taxpayers and the fraud continues.

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 Misclassification, Workers' Compensation, Workplace Injury and tagged , , , .

What the big California worker classification case means and could mean

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The California Supreme Court made big news in the world of workers’ compensation and employment law last week when it adopted the employee-friendly ABC Test  for the purposes of California’s minimum wage law. The decision was seen as a set back for gig economy companies like Uber who classify their workers as independent contractors. 

The bigger story as pointed out by CNN Money reporter, Lydia DePillis , and widely acknowledged by attorneys and legal academics is the patchwork of different state labor laws and how they will impact the gig economy and workers. My room temperature take is that employee classification laws aren’t even consistent within states. Nebraska has adopted the ABC test for the purposes of unemployment and for our wage payment act by statute. But Nebraska imposes the more employer-friendly right of control/economic reality test by case law for the purposes of workers compensation.

Labor Secretary Alexander Acosta has called for an update of labor and employment laws to aid the gig economy. Experienced workers’ compensation attorneys may view the fight over the classification of gig economy workers as a potential threat to their practices but as essentially an old issue that has new prominence because of the rise of companies like Uber. But worker classification legislation is only part of the story about how the rise of the gig economy could change workers’ compensation laws. Advocates for injured workers need to understand how so-called “portable benefit” schemes could change workers’ compensation laws. If enacted, portable benefits laws could radically alter the grand bargain behind workers’ compensation laws. They could also provide more uniformity of laws regarding employee benefits and protections like workers’ compensation

A portable benefit is defined as a benefit that is paid into an employer-sponsored plan that can be transferred to a new employer or to an individual who is leaving the workplace.[At least when it comes to health insurance, portability has some real benefits for workers’ rights. Employees aren’t tied to a potentially abusive employer just for the sake of keeping their health insurance. Candidly any portable benefits scheme that expands health insurance coverage would also help workers who do not have health insurance. The pro-worker potential of portable benefits was recognized by the National Employment Law Project who issued a report with the Roosevelt Institute about how portable benefits could be implemented.

But other portable benefit plans developed by Washington D.C. think tanks run the gamut from the really bad to the just bad.

MIT economist Jonathan Gruber, who was influential in the design of the Affordable Care Act, wrote a paper for the Aspen Institute that proposed catch-all individual security and retirement accounts as alternatives or replacements for workers’ compensation and unemployment insurance.  Without anything in the way of attribution, Gruber breezily states that higher workers’ compensation benefit payments create a “moral hazard” which leads to more injuries and longer durations of injuries. Gruber then goes on to propose that injured workers exhaust their individual security accounts before they collect workers’ compensation benefits and that workers’ compensation benefits be subject to federal taxation. It is important to note that Gruber doesn’t limit his proposal for portable benefits to gig economy workers.

Economists Seth Harris and Alan Krueger have proposed a somewhat more worker-friendly portable benefits scheme designed for gig economy workers to be paired with a new type of employee classification between employee and independent contractor for workers in a paper did they did for The Brookings Institute. The Harris-Kruger plan would allow gig economy employers to “opt-in” to state workers’ compensation laws. But even the more worker-friendly Harris-Krueger portable benefits scheme was created mainly to reduce litigation costs for gig economy companies. Former National Labor Relations Board member and associate counsel for the AFL-CIO, Craig Becker, pointed out that creating a new class of workers may create more litigationwhen employers try to re-classify employee as a new class of worker.[5] Becker and others pointed out that this is what happened in Italy when Italy created a third class of worker that was neither employee nor independent contractor. Legislation has been introduced in California that is along the line of the Harris-Krueger plan.

Many plaintiff’s lawyers seem to, or at least want to, believe that since workers’ compensation laws were enacted under 10th Amendment police powers then workers’ compensation laws are a matter of “state’s rights” and so-called federalization is uncalled for and unconstitutional. Congress has broad authority under its taxing power to effect economic activity that is beyond even the broad scope of its power to regulate individual commerce. The individual mandate of the Affordable Care Act was found to be constitutional under congressional taxing authority even though the mandate exceeded congressional authority to regulate interstate commerce. Recently passed changes to tax law have encouraged workers to take independent contractor status.

Besides workers’ compensation, the other mandated benefits that stem from the employee-employer relationship — unemployment, Medicare and Social Security — are all effectuated in whole or in large part through federal taxes. If a portable benefits are implemented on a nationwide basis, it will likely happen through the tax code and they could be enacted in a constitutionally valid way. Any discussion about the impact of the gig economy on worker classification laws should include discussion about portable benefits proposals.


 

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 Constitutional law, worker classification, Workers Compensation and tagged , , .

Wisconsin Workplace Deaths on the Rise

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Good piece from Charlie Domer. Unfortunately, workplace deaths are on the rise across the country.

There is a bad trend in Wisconsin: Deaths on the job are on the rise.

Specifically, OSHA (on December 18, 2017) issued a release that there were five Wisconsin worker deaths in the last 22 days!:

  • (Madison):  On November 27, 2017, a 26 year old employee was abrasive blasting and cut his inner thigh (femoral artery) with the abrasive blasting nozzle.  Reference OSHA’s Abrasive Blasting web page for safety and health related information regarding abrasive blasting operations.
  • (Eau Claire):  On December 1, 2017, a 60 year old employee working on a logging site was struck by a backing forwarder (skidder) machine.  Reference OSHA’s Logging web page for safety and health related information regarding logging operations.
  • (Milwaukee Area Office):  On December 5, 2017, a 32 year old employee was struck in the head when an approx. 50 lb. part being worked on flew out of a CNC machine. 
  • On December 5, 2017, a 59 year old employee was struck in the abdomen by a piece of wood that had kicked back from a table saw.  Reference OSHA’s Woodworking web page for safety and health related information regarding woodworking operations.
  • (Milwaukee Area Office):  On December 9th, 2017, a 36 year old employee was struck-by a materials van and pinned between the van and loading dock the van was being backed up to. Employers are encouraged to review dock areas to identify hazards and take necessary corrective actions.  Reference OSHA’s e-Tool on Powered Industrial Trucks (Forklift) for information on dock safety.

These recent workplace deaths are in the same year as the devastating plant explosion in Cambria, Wisconsin, on May 31, 2017, resulting in the death of 5 workers and injuring many more.  OSHA proposed a $1.8 million fine related to this fatal explosion.

Sadly, these workplace deaths are on the rise in our country as a whole.  The Bureau of Labor Statistics recently released its latest report on fatalities in the workplace, with data through 2016.  Unfortunately, the number of fatalites is the highest ever since 2008.  An informational chart can be found here.

While employers indicate there are ever-increasing safety measures at workplaces, accidents–even catastrophic ones–still happen.  And they are happening with more frequency.

Under Wisconsin worker’s compensation law, there are no pain and suffering damages for those family members left behind by the deceased worker.  A dependent (generally a surviving spouse or children under the age of 18) can bring a claim for death benefits–which are four times the worker’s annual earnings.  This amount can be (and can feel) woefully inadequate following a worker’s death.

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 OSHA, Workplace Deaths, Workplace Fatalities and tagged , , , .

The Chinese province of Nebraska?

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Xi JinRicketts?

The equivalent of an economic drone strike took place a few blocks northeast of our Omaha office.

Roy Jones was an hourly customer engagement employee at the Marriott Reservation Center in Omaha. As reported in The Wall Street Journal and Quartz,  he liked a tweet by a Tibetan group congratulating Marriott for listing Tibet as a country.  

As a result of liking a the tweet, the Chinese government ordered Marriott to suspend bookings at 300 hotels in China for a week. Mr. Jones was also terminated. Matt Hanson in the Omaha World-Herald reported, Jones was under traiend and over stressed when he liked the offending tweet. Jones had little idea that liking the tweet would be offensive to the Chinese.

Chinese leader Xi Jinping made news recently becoming the Chinese leader since Mao Zedong to rule for life.  Back in 2016, I wrote a post pointing out Jinping’s increasingly authoritarian tendencies and his crackdown on employee-rights lawyers in China.  I never thought the authoritarian Jinping regime would extend its reach into what writer Matt Stoller  sarcastically described on Twitter as the “Chinese province of Nebraska.”

Nebraska’s junior senator, Ben Sasse, has made a pet issues out of the emerging threat of cyber-attacks from foreign powers. I would wonder what he thinks about a foreign power, China, having the power to fire one of his constituents?

Hanson concluded his article by concluding that Jones’ termination wasn’t right. I agree, but employment at-will allows employers broad legal protections when it comes to firing employees. In essence, employers have Jinping-like powers in the workplace. But when a foreign dictatorship has the power to fire an American worker, legislators and judges should re-think employment at-will or think about creating exceptions to that legal doctrine.

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 , .

Dangerous Toys Remain Serious Concern, CPSC Under Attack

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Dangerous toys remain serious concern, especially with CPSC under attack. New York personal injury attorney Matt Funk explains.

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

Dangerous toys remain a serious problem, even though the Consumer Product Safety Commission has focused on banning unsafe toys since the CPSC was created 45 years ago, thanks to repeated warnings by attorneys focused on consumer safety.

But the CPSC and its power to recall dangerous toys are now under attack, according to New York attorney Matt Funk, president of the New York State Trial Lawyers Association and a partner at Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP.

Last year, 240,000 people were hurt by dangerous toys, according to CPSC statistics. The CPSC also issued 28 voluntary recalls for dangerous toys, according to the CPSC.  But since the recalls are voluntary, many dangerous toys remain in households throughout the country.

That’s why attorneys play such a vital role in removing dangerous toys from the marketplace. Examples of dangerous toys that attorneys have pressured the CPSC to recall include:

“With the prospect of the federal government reducing its already inadequate consumer protection activities, the task of defending the public will once again fall on consumers. And their lawyers,” Funk wrote in the New York Law Journal.

The power of the CPSC is under attack in two major ways. First, President Trump has proposed cutting the CPSC’s budget by 17 percent, according to The New York Times. Second, Trump has nominated attorney Dana Baiocco to run the CPSC, according to the New York Daily News. Baiocco has reportedly “represented companies accused of selling dangerous and defective products—including toy manufacturer Mattel when it was facing lawsuits because of lead in its products… Can consumers be sure that she will be looking out for them the next time a company is accused of selling a dangerous product,” Funk wrote.

“As lawyers, we have a special opportunity to make sure the toys and other products on the store shelves are safe,” Funk added. 

Pasternack Tilker Ziegler Walsh Stanton and Romano LLP

 

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 Toys and tagged , .