The Nebraska Workers’ Compensation Court reported workplace deaths increased from 41 to 54 over the last fiscal year. Workplace deaths increased in Nebraska even as the overall number of reported work injuries declined.

The findings were included in the annual report of the Nebraska Workers’ Compensation released on Monday.

I think its’ important to note that the number of First Report of Injuries is just an estimate of work injuries in Nebraska. Filing a first report isn’t an admission of a work injury by an employer. On the flip side some employers under-report work injuries, so the number reported by the court could either overestimate or underestimate the number of work injuries in this states

Statistics from one year from one state may not indicate any kind of trend about workplace deaths or work injuries. Workers’ compensation laws vary from state to state. Statistics from the federal Bureau of Labor Statistics (BLS) probably give a better picture of national trends but, their reporting lags behind one fiscal year. In the most recent reported year, Fiscal Year 2018, the BLS showed a 2 percent increase in workplace fatalities.

But even if the increase in workplace deaths in Nebraska isn’t significant from a statistical point of view, workplace deaths are tragic for the families affected. I’ve written previously about how the workplace injury and death survivor group, USMWF has started to lobby for better workplace safety and workers’ compensation laws.

 

Maximum benefit rates increased for 2020

The Nebraska Workers’ Compensation Court announced the maximum weekly benefit will also increase from $882 to $855. Nebraska law adjusts the maximum wage rate along with increases to the state’s average wage rate.

While the increase in maximum benefits in Nebraska is routine, that is not the case in every state. In 2017, a judge in Alabama ruled portions of their workers’ compensation law was unconstitutional because maximum benefits had not increased since 1987.

Interestingly enough, the court has not announced the mileage rate for 2020. That number is based on the IRS rate which has not been announced yet. The current mileage rate is $.58 per mile.

Transportation cost is one factor in determining how disabled injured workers are in Nebraska. Much litigation centers on whether it is cost-effective for a worker living in a remote area to commute to a more populated area for work. The cost of a commute, as determined by the mileage rate, in proportion the wages earned is a crucial question.

In 2019, the cost of transportation increased faster than the increase in average wages in the state. In practical terms, this would mean an injured worker might reasonably expected to commute a shorter distance. But mileage costs can vary from year to year, while the maximum benefit as average wage tends to increase steadily. Mileage reimbursement was only 5.4 percent higher in 2019 than it was in 2009. In contrast, the maximum benefit increased 27.4 percent over the same period.

A Chinese woman from Henan province successfully sued a company in Hangzhou province for denying her a job based on status as a resident of Henan province.

To put this in American terms, this would be the equivalent of someone from West Virginia or Kentucky winning a case against an employer in New York or California for denying them a job based on them being from West Virginia or Kentucky.

State or regional discrimination claims would not succeed under U.S. law. State and regional discrimination is also less of an issue in the United States than it is in China. A comparison of legal systems between the two countries can help us understand why.

China v. United States Part 1: Just Cause v. At-will

In order to fire an employee in China, an employer generally needs to prove good cause. In the United States an employer can fire an employee at any time for any reason. This is called “employment at-will” and I’ve discussed the topic extensively. In short. American courts are reluctant to intervene in the employee-employer relationship barring some explicit statutory or case law authority giving them power to do so. State citizenship or regional background is not one of those reasons.

Chinese courts aren’t bound by the employment at-will and have more leeway to second guess employment decisions. A Chinese court is free to decide that not hiring someone because of provincial origin is unlawful even without any express legal guidance on the issue. Chinese law also provides discrimination protections for workers in rural areas seeking employment in urban areas.

China v. U.S. Part 2: Hukou v. Article IV

Regional discrimination is a more contentious issue in China because of the hukou system which limits the abilities of Chinese citizens to migrate, contract and own property within China. In contrast, Americans have the right to travel, work and contract anywhere in the United States. This freedom is guaranteed by the so-called privileges and immunities clause of the United States Constitution at Article IV, Clause 1. The privileges and immunities clause also limits the ability of U.S. states to discriminate against the citizens of other states.

So in essence, U.S. law severely limits discrimination based on state origin by governments, but permits private parties to discriminate on that basis in the workplace. In contrast, Chinese law approves of government discrimination based on provincial (state) origin, but is more willing to limit such discrimination between private parties in the workplace.

Last month gig economy companies like Uber announced a petition drive to repeal Assembly Bill 5 (AB5) which expanded workers’ compensation benefits and other employment protections to gig economy workers and others in California.

AB5 should increase workplace protections for Lyft and Uber drivers, but what can California’s previous attempts to help professional drivers tell us about the future of AB5? It may explain why the gig economy companies are working at a state rather than the federal level. 

Rest breaks for truckers

California amended their wage and hour law to require employers give truckers a break after five hours of service. That law offered more protections than federal law, At the end of 2018, the Federal Motor Carrier Safety Administration ruled that California law on breaks was preempted by federal law.

There is nothing new about employers running to the federal government to undo state laws that improve workers’ rights — those efforts date back at least to the Dred Scott decision in the 1857.

So what are the chances that AB5 will suffer the same fate as California’s efforts to insure fair pay and working conditions for truckers? I think AB5 will be harder to undo on a federal level for a few reasons.

Federalism issues

Preemption of federal law by state law has a better chance of succeeding if there is a strong constitutional basis for federal regulation. In the case of trucking, the interstate commerce clause gives the federal government a solid basis for regulating trucking. It’s easier to argue that federal law should preempt state law in an industry that clearly falls within Congressional power to regulate.

In contrast, workers’ compensation laws are state-based laws enacted under state police powers. Workers’ compensation is a form of insurance and Congress has largely delegated insurance regulation to the states. So at least for the workers’ compensation provisions of AB5, I believe there is almost no chance that federal courts would rule that part of the legislation would be preempted by federal court.

Political reasons

The reason the trucking industry had to rely on a ruling by the FMSCA to invalidate California’s law on detention pay for truckers, was that it was unable to get the so-called Denham amendment passed.  In other words, the trucking industry failed to change the law legislatively, so they ran to the executive branch rule making process to get what they wanted.

I started paying close attention to worker classification and portable benefit schemes as they related to the gig economy in 2015. I read a paper from the Democratic-leaning Hamilton Project promoting portable benefit schemes for gig economy workers. Part of that paper included a quote from former Treasury Secretary Bob Rubin stating that there needed to be reform of labor laws for the 21st century. Rubin was an architect of financial deregulation in the 1990s, so the idea of him doing the same for labor laws horrified me.

What horrified me was the prospect of Wall Street and Silicon Valley influenced Democrats working with Republicans in some “grand bargain” or feat of “bi-partisanship” to hammer the coffin nail in state workers’ compensation laws from a federal level.

But if the trucking industry can’t even pass the Denham amendment. (BTW Representative Jeff Denham was defeated in 2018), a federal grand bargain on the gig economy seems far-fetched. The Democratic Party, at least on paper, has become a stronger supporter of worker rights over the last four years. Labor militancy has made a comeback in the last four years.  The tech industry has also seen its reputation and popularity lag over the last four years.

Gig economy companies are still attempting to weaken America’s already weak employment laws, but the passage of AB5 in California shows their efforts can by stymied. 

The Nebraska Workers Compensation Court mails copies of First Reports of Injury out to about 40,000 workers per year along with a letter from the court.

So if you receive one of these letters, why are you getting this letter from the court? What can this report tell you about your potential workers compensation claim?

Why are you getting a letter from the comp court?

You are getting a letter because your employer or their workers compensation insurer or claims administrator filed a First Report of Injury with the Nebraska Workers Compensation Court.

Employers are required to file a First Report when an employee seeks outside medical treatment, is killed on the job, misses work or has an injury that results in restricted work. The fact that your employer filed this report doesn’t mean that you are going to get workers compensation benefits or that your employer even admitted you got hurt at work.

But even if this report isn’t an admission of responsibility by your employer, it can tell you some important things about your workers compensation case.

Insurance information

The report includes the name of your insurer. It should also include a claim number for your workers compensation claim. You can give that claim number to your doctor’s office so they can turn over their bills to the workers compensation insurer.

Lack of insurance information, should be a major red flag and should lead you to call a lawyer

Reporting of injury

The report includes information about when the injury happened and when the injury reported to the employer. Remember that this report was filled out by your employer or their insurer. If the dates on the form about when the injury happened and when it was reported don’t match with your recollection you might want to contact an attorney.

Nature of Injury

The report includes a section for nature of the injury. If that section doesn’t match up with what your injuries are, that should concern you. It’s possible your employer may not be willing to cover all of your work injuries.

Discrepancies about the reporting of the injury and nature of the injury can be an indication that your employer might argue you did not give them timely notice of accident. Though this defense rarely succeeds, employers can claim lack of timely notice to defeat an otherwise valid claim.

This means one of two things: either your employer doesn’t have your current address or they didn’t fill out a First Report. Under Nebraska law, an employer’s failure to file the report extends the time an employee can file a workers’ compensation claim. It can also lead to criminal sanctions on your employer. But from a practical perspective, the fact that your employer didn’t file a First Report makes it harder to get benefits. The Nebraska workers compensation court can give you insurance information, but oftentimes contacting an insurer when a report hasn’t been filed leads to an unhelpful response from an insurer.