Yearly Archives: 2018

What’s new for 2019 in Nebraska workers compensation?

Posted on December 31, 2018 by Jon Rehm

The beginning of the year usually sees rule and benefit changes in the Nebraska Workers’ Compensation Court. 2019 will be no different. The maximum rate for disability benefits will increase to $855 to $831. Mileage reimbursement for medical visits and vocational rehabilitation will increase to $.58 per mile from $.545 per mile.

While annual increases in the maximum benefit rate are routine in Nebraska, it is not routine in all states. The annual increase in the maximum benefit rate ensures that compensation stays adequate from both a practical and constitutional perspective.

The minimum benefit remains unchanged at $49.00 per week. That amount has not changed since 1973. That low amount can particularly harm a worker who suffers a serious injury on a second job or part-time job — like a holiday job — if the work injury keeps them from doing a full-time job.

The mileage rate increase might also seem humdrum, but it is common for injured workers in Nebraska to travel relatively long distances to seek care from specialists. An increase in mileage reimbursement of $.035 per mile means another $7 for injured worker who makes a 200-mile roundtrip for medical treatment which is not uncommon in Nebraska.

The Nebraska Workers’ Compensation Court also approved various procedural changes at their meeting on December 20^th.

Rule 2 – Rule 2 regulates filing in the Nebraska Workers’ Compensation Court. Changes to the filing rules mandate the use of registration for the E-File system through Nebraska.gov. Additionally, the court will formally allow pleadings filed by 11:59:59 p.m. central time to be deemed to be filed that day rather than waiting for formal business hours to get a document file stamped. Appeals can now also be filed electronically.

Rule 47 – The change to Rule 47 provides that more detailed information about third-party cases be provided to the court in settlements that require court approval. The court doesn’t have jurisdiction to determine third-party liability but it does have some interest in repayment or subrogation interests under the theory that subrogation interests ensure that medical providers are adequately paid. Case law also provides that protection of a employer/insurers subrogation interest effectuates the beneficent purpose of the act.

Rule 50 – The court ended its prohibition of doctors referring patients to clinics where they have an ownership interest. This rule changes allows for doctors to refer to physican-owned specialty hospitals. These hospitals can perfrom procedures at a lower cost, but the ACA prohibited such facilites from taking Medicare and Medicaid.

The court also adopted a new fee schedule dictating how providers are paid for treating work injuries. You can read about here as to why that is significant here. The court also rejected a change to NWCC Rule 10 prompted by a recent Nebraska Supreme Court decision that you can read about here.

Will there be a fix for legislation like the Protz fix?

Posted on December 27, 2018 by Jon Rehm

Doing the math: How the AMA 6th costs workers with a wrist injury

In a dubious triumph for bi-partisanship, Pennsylvania reduced workers’ compensation benefits for many if not most workers with permanent injuries in 2018. 2018 was a bad year legally for workers rights and the so-called Protz fix was emblematic of the year for a few reasons.

But 2018 also showed some glimmers of hope for workers such that there may be fixes for legislation like the Protz fix.

Legislatures take, courts make and vice versa

Pennsylvania Governor Tom Wolf signed HR 1840 which legislatively overturned the Protz decision which held Pennsylvania’s language using the “most recent” edition of the AMA Guides to Permanent Impairment to determine compensation for permanent injuries was unconstitutional. Pennsylvania “fixed” the Protz decision by expressly adopting the AMA 6^th.

The AMA 6^th has been criticized, correctly in my view, because it is bases impairment on inability to do general life activities versus working activities. A recent study confirms this suspicion long held by plaintiff’s attorneys. From a practical point of view, the AMA 6^th usually leads to an injured worker receiving less compensation than they would under previous editions of AMA impairment “cookbook.”

When I started practicing in 2005 a worker who had a carpal tunnel surgery usually had a 5 percent impairment under the AMA 5^th. Now, that same injury is typically a 1 percent impairment under the AMA 6^th.

For a worker in Nebraska earning $15 per hour, the difference between the two impairments on a wrist injury amounts to $2800. After the Protz “fix” was passed, the Pennsylvania Compensation Rating Bureau filed for a 14.74 decrease in workers’ compensation insurance rates.

My big takeaway from the Protz decision and the subsequent “fix” is just how much work needs to be done politically to make sure injured workers are fairly compensated for their injuries. The Protz “fix” passed easily. Plaintiff’s lawyers resorted to constitutional challenges because many state legislatures have weakened workers’ compensation laws. Protz shows that appellate victories can be fleeting because legislatures can easily overturn those decisions.

Does the plaintiff’s bar need to worry about “constitutional challenges” of their own?

2018 also saw some disturbing court decision that could impact workers’ compensation. In SEC v. Lucia the United States Supreme Court held an investment adviser convicted of securities fraud by the Securities and Exchange Commission (SEC) was unconstitutionally convicted because the Administrative Law Judge (ALJs) who tried his case was hired in violation of the appointments clause. Iowa is one of many states workers’ compensation cases are heard by Administrative Law Judges that are hired as civil servants rather than appointed by the Executive. SEC v. Lucia could help employers/insurers to make persuasive appointments clause arguments under state constitutions that such arrangements are unconstitutional.

Protz relied on an argument about unconstitutional delegation of legislative powers which is fundamentally a conservative argument which was used to strike down New Deal legislation. Workers’ compensation reforms have also been challenged on a contracts clause basis which is another conservative argument used against pro-workers legislatsion in the past. Maybe these arguments appeal to conservative pro-business types, but they could be used against advocates for injured workers and their clients.

But there are some reasons for hope that emerged in 2018.

2018: Reasons for hope for injured workers

But 2018 did see gains for Democrats in state and federal elections. To be blunt, pro-worker is often a code for “Democrat”. While there are some exceptions, most conservatives are terrible for workers. Democrats generally oppose extreme conservatives, so they serve some purpose. But in Pennsylvania the so-called Protz fix was signed by a Democratic governor and supported by Democratic state legislators. In my experience, many Democratic elected officials aren’t going to support workers unless they get prompted, but they are usually lack the same ardor to gut workers’ rights.

More hope can be found outside the realm of electoral politics. In 2018 citizens started taking direct action. Some of the biggest gains made for workers in recent memory happened during teachers’ strikes in Arizona, Oklahoma and West Virginia this year. The chattering classes asked “Why don’t these striking teachers just vote for the right people?” Well, they tried and it didn’t work. Rank and file teachers in Arizona, Oklahoma and West Virginia found a better way to advocate for themselves.

The teachers strikes took place in the wake of the Janus decision that dealt a blow to public sector unions. Workers’ rights were also dealt a blow by the Epic decision that, among other things, allowed employers the right not to join class and collective action cases through so-called arbitration agreements. Workers for Chipotle and Uber have come up with the ingenious hack of filing in mass for individual arbitrations.

I see the challenge for 2019 for lawyers for injured workers’ is finding away for this newly emerging energy and creativity from workers in support of their own rights focused on improving workers’ compensation. I’ve written before about state senators Dan Quick of Nebraska and Lee Carter of Virginia who used their bad experiences with workers’ compensation to try to improve the workers’ compensation laws in their state.

So while lawyers for injured workers may be on the defensive in the legislative and judicial arena, we may have newfound allies that could help us reverse the steady erosions of workers’ compensation laws.

Happy Holidays!

Posted on December 24, 2018 by Rehm, Bennett & Moore, P.C., L.L.O.

Happy Holidays from the attorneys at Rehm Bennett Moore Rehm and Ockander.

This holiday season we are grateful for….

The clients who have been physically, financially and or emotionally harmed by others who trust us to represent them.

The family members of our clients who help us represent our clients.

Our staff who helps us represent our clients and put up with us on a day to day basis.

Our family members who put up with us and support us.

The doctors who treat our clients and cooperate in court proceedings along with their nurses and support staff.

Court staff, court reporters, interpreters and everyone else behind the scenes in the legal system.

Opposing counsel and their support staff for their professionalism in litigation.

Judges who provide prompt and well-reasoned decisions…even if we as attorneys don’t always agree with the decisions.

Nebraska work comp court rejects rule change on P.A. reports

Posted on December 20, 2018 by Jon Rehm

The Nebraska Workers Compensation Court isn’t in the state capitol anymore. But this is a good picture.

By a 5-2 vote, the judges of the Nebraska Workers’ Compensation Court rejected a proposed change to NWCC Rule 10 that allows physician assistants, nurse practitioners and neuropsychologists to testify by written report in the Nebraska Workers’ Compensation Court.

The rule change was proposed in response to the recent Bower decision that held that P.A.s could not submit written reports in the court because they were not mentioned in the text of NWCC Rule 10. Rule 10 designates which experts may testify by written report in the court.

I’ve written here and here that I believe that including P.A.s within NWCC Rule 10 benefits uninsured and rural injured workers who may not have access to care besides a P.A. or nurse practitioner. P.A.s also work closely with specialists and often handle matters like light or alternate duty restrictions. Allowing P.As to testify by Rule 10 report would clear up any amhguity over P.A. assigned temporary duty restrictions. Furthermore allowing P.A. reports under Rule 10 may decrease litigation costs for workers and employers/insurers.

However a majority of judges of the Nebraska Workers Compensation disagreed. The majority seemed to agree that P.A. reports were admissible into evidence, but could not be replied upon as expert testimony. That interpreation seemed to vary from the opinion that Bower excluded P.A. reports from evidence.

Under Neb. Rev. Stat. 48-163, the Nebraska Workers Compensation Court has the power to prescribe its own rules of evidence and procedure.

Also at Thursday’s hearing the court adopted a fee schedule for injuries covered under the Nebraska Workers Compensation Act for 2019. The fee schedule determines how much a medical provider can be paid for services under the act. The fee schedule means that the reasonableness of medical charges is generally not litigated in workers’ compensation cases in Nebraska. This lessens litigation and encourages medical providers to accept workers’ compensation patients. Other states, notably New Jersey, do not fee schedule medical charges which leads to more complicated workers’ compensation claims.

The court also voted in favor of rule changes about filing, lump sum settlements and doctor choice.

Nebraska considers rule change to allow P.A. reports in workers compensation cases

Posted on December 18, 2018 by Jon Rehm

On Thursday, the Nebraska Workers’ Compensation Court is considering amending NWCC Rule 10 to allow physician assistants or (P.A.), nurse practitioners and neuropsychologists to testify by written report.

The proposed rule change appears to have come in response to the recent Bower v. Eaton decision where the Nebraska Supreme Court held that P.A.s could not testify by written report in the Nebraska Workers’ Compensation Court.

I wrote in October that I believe the Bower 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.A.s 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.

Under the Bower decision, 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.

The prohibition of P.A. testimony by written report can also complicate litigation for employers. Often surgeons will have P.A.s do post-surgical follow up visits. In many instances the P.A. will issue return to work notes for light or alternate duty. But since a P.A. isn’t a recognized expert under NWCC Rule 10, there would be some question over whether a P.A. had the right to issue return to work notes. This could weaken an employer’s case that they were accommodating a work injury.

OSHA’s Top 10 Violations for 2018 revealed at National Safety Council Congress and Expo

Posted on December 17, 2018 by Rod Rehm

Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

Today’s post comes from our colleagues at WorkersCompensation.com

The Occupational Safety and Health Administration (OSHA) announced the preliminary Top 10 most frequently cited workplace safety violations for fiscal year 2018. Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, presented the Top 10 on the Expo floor as part of the 2018 NSC Congress and Expo, the world’s largest annual gathering of safety professionals.

While the rankings for OSHA’s Top 10 most cited violations vary little from year to year, violation No. 10 on this year’s list, “Eye and Face Protection” (1926.102), was not on the 2017 list.

“Knowing how workers are hurt can go a long way toward keeping them safe,” said National Safety Council President and CEO Deborah A.P. Hersman. “The OSHA Top 10 list calls out areas that require increased vigilance to ensure everyone goes home safely each day.”

The Top 10 for FY 2018* are:

1. Fall Protection – General Requirements (1926.501)	7,270
2. Hazard Communication (1910.1200)	4,552
3. Scaffolding (1926.451)	3,336
4. Respiratory Protection (1910.134)	3,118
5. Lockout/Tagout (1910.147)	2,944
6. Ladders (1926.1053)	2,812
7. Powered Industrial Trucks (1910.178)	2,294
8. Fall Protection – Training Requirements (1926.503)	1,982
9. Machine Guarding (1910.212)	1,972
10. Eye and Face Protection (1926.102)	1,536

A more in-depth look at the Top 10 violations for 2018 will be published in the December edition of the Council’s Safety+Health magazine.

*Preliminary figures as of Oct. 1, 2018

About the National Safety Council
The National Safety Council (nsc.org) is a nonprofit organization whose mission is to eliminate preventable deaths at work, in homes and communities, and on the road through leadership, research, education and advocacy. Founded in 1913 and chartered by Congress, NSC advances this mission by partnering with businesses, government agencies, elected officials and the public in areas where we can make the most impact.

Credit where credit is due; George H.W. Bush and civil rights

Posted on December 13, 2018 by Jon Rehm

I thought Dana Carvey’s impersonation of George H.W. Bush was high comedy circa 1990

Anybody who knows me in real life (IRL) or online knows my politics skew left of center.

But I give the recently departed George H.W. Bush credit where credit due for the Americans with Disabilities Act and Civil Rights Act of 1991.

The Americans with Disabilities Act has given disabled workers protections in the workplace. When coupled with the Family Medical Leave Act (FMLA), the ADA has been particularly helpful to workers hurt on the job who had to miss work because of work injuries.

The Civil Rights Act of 1991 amended Title VII and the ADA to allow for jury trials in those cases and to allow for compensatory and punitive damages in those cases. In short, discrimination cases became worth more.

Bush vetoed and denounced the Civil Rights Act of 1990 as a “quota” bill, but his support of the 1991 Civil Rights Bill lead to strong backlash among the white nationalist wing of the GOP and prominent figures in that wing including former Klansman David Duke. TV commentator Pat Buchannan picked up Duke’s banner of racial resentment and challenged H.W. Bush in the 1992 Republican Presidential primary.

H.W. Bush doesn’t deserve some posthumous profile in courage for his support of civil rights legislation. He played to racial prejudice with his attacks on Mike Dukakis over Willie Horton.

H.W. Bush also governed with a Democratic congress for the entirety of his term. Any kudos that he gets for the ADA and the Civil Rights Act of 1991 need to be shared with Democratic legislators such as Ted Kennedy and Tom Harkin.

H.W. Bush’s judicial appointments also generally interpreted the ADA and Title VII that made it harder for employees to effectuate their substantive rights. In fact, the ADA was gutted so bad by federal courts that Congress basically had to re-pass the ADA in 2008.

H.W Bush also presided during a decline in unionization that began in his predecessor Ronald Reagan’s term and continue to his day. He didn’t do anything to slow this trend and his appointments to the NLRB and his trade policies certainly accelerated the trend. In many respects, unions provide more protections on the job than civil rights laws.

But the said fact is that no major civil rights laws have been passed since H.W Bush was President. This time period included the 16 years of the Clinton and Obama presidencies. While it is true that Clinton and Obama did tend to appoint judges and administrative officials who tend to be more favorable to employee rights, it’s hard to argue that Clinton and Obama appointees are employee-advocates when it comes to things like whistleblower law and pensions.

The Obama administration did make some federal rule changes that were favorable to employees, but since the Obama administration slow-walked these changes they were vulnerable to repeal during the Trump administration.

Neither Clinton nor Obama did much of anything to reverse the decline of unionization. Obama did next to nothing to support legislation to make it easier to organize unions when he had a near-super majority of Democrats in the Senate in the first two years of his term.

I’ve thought over the last few days about how to conclude this post. I believe that workplace rights laws are generally popular with voters. Then best way to promote workplace fairness is to fight for broad based workplace rights legislation. Relying on the judicial branch and executive action is a por substitute for legislation. Even a pro-business Republican like George H.W. Bush will not completely oppose the will of the people as expressed by Congress.

Talking points for injured workers who want to see their own doctor

Posted on December 10, 2018 by Jon Rehm

Talking points for employers looking to undermine rights of injured workers to pick their own doctor

I was sitting in a conference call when I screen captured the email that is the photo for this post.

The email came from an occupational medical clinic in Omaha. It used the occassion of an updated doctor choice form from the Nebraska Workers Compensation court to distribute talking points for management when injured workers balk, rightly, at being sent to an occupational medical clinic.

Injured workers have the right to pick their own doctor in Nebraska. But that doesn’t mean that the insurance industry and self-insured employers aren’t going to try to control medical care to their advantage. Insurance companies spend money on “nurse case managers” and self-insureds usually have in-house nurse case managers, who in my view, try to persuade doctors to write medical records and reports that are favorable to the employer. The use of occupational medicine or “occ, med,” clinics is another tactic used by emplyoers to get favorable outcomes for themselves in workers’ compensation claims.

These talking points overcoming employee objections to going to an occ, med. clinic are an example of how employers/insurers try to work around rules that allow injured workers to see theiir own doctors in Nebraska.

I am going to break down these talking points one by one.

1.“We want the best care for you.” If an employer wants the best care for their employees, it would stand to reason they would let the employee go to a doctor who has treated the employee previously and knows their medical history. Treatment would be more effective and efficient without having to re-invent the wheel with a new doctor.

A lot of injured workers end up at occupational health clinics because they don’t have a family doctor because they don’t have health insurance. If a company doesn’t offer affordable health insurance, I would question whether the company really wants what is best for their employees.

2. See you right away – If the injury is acute, an employee will be sent to the emergency room rather than an occupational medical clinic that is more or less an urgent care clinic. While there can be delays in getting to see a family doctor, many family doctors or general practitioners will hold back appointments for urgent cases like work injuries. Injured workers need to be assertive with medical office staff in insisting that they be seen that day.

Of course, this point is moot if an employee doesn’t have their own doctor. See the previous paragraph. That’s why I support the initiative to expand Medicaid in Nebraska.

3.You don’t have to pay if you go to an occ. med. clinic – Under the Nebraska Workers’ Compensation Act, an employee doesn’t have to pay out of pocket for medical care – period – it doesn’t matter who they see. There is an element of truth that some doctors don’t accept workers’ compensation insurance. But if the case requires a referral to surgeon, that surgeon will almost certainly accept workers’ compensation insurance.

By the way, if an employee does get stuck at an occ, med. clinic and they get a referral for a surgery, they can pick their own surgeon even if the employee agreed to let the employer pick the doctor at first.

4. You have to go to this clinic to get drug tested clinic anyway – This isn’t so much a talking point as it is an assertion of power by an employer. It’s a thinly veiled threat that if the employee doesn’t go to the cliinic the employer wants, then they are going to be in trouble. The use of occupational health clinics to perform mandatory post-injury drug testing is a way from employers to cleverly work around Nebraska law on doctor choice under the cover of state and federal law about drug testing. Employee drug testing is as much about employers asserting control over employees as it as about employee safety.

OSHA regulations have recently been revised to allow employers more clarity — or latitude — to drug test emplyoees after a work injury. I will post on this in the near future, but take a look at this post for now,

In short, some employers are going to do their worst to cajole and coerce injured workers into undermining their workers’ compensation case by not letting employees pick their own doctors. Employees in such a situation ought to call a lawyer to get advice and help with their workers’ compensation case.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

Published by:

Yearly Archives: 2018

What’s new for 2019 in Nebraska workers compensation?

Will there be a fix for legislation like the Protz fix?

Happy Holidays!

Nebraska work comp court rejects rule change on P.A. reports

Nebraska considers rule change to allow P.A. reports in workers compensation cases

OSHA’s Top 10 Violations for 2018 revealed at National Safety Council Congress and Expo

Credit where credit is due; George H.W. Bush and civil rights

Talking points for injured workers who want to see their own doctor

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this: