My topic will focus on working with non-English speaking clients. As we all know, non-English speaking immigrants come to this country for many different reasons, but the vast majority end up in labor jobs: jobs that cause work comp injuries. Personally, I have represented clients from over 20 countries; in Nebraska we have a surprising number of immigrants and refugees who relocate to Nebraska for plentiful jobs and cheap housing.
As a result of this melting-pot of injured workers, my seminar presentation will focus on the Ethics of representing non-English speaking clients. Specifically, I will explain what lawyers should do when a non-English speaking client contacts the lawyer; what issues may arise during litigation; and how to handle non-English speaking clients and interpreters during legal proceedings.
I recently wrote a post about immigration status and workers compensation. You can read that post here.
I will present on opioids in workers’ compensation. I plan on spending some time discussing opioid addiction as a work-related medical condition and some of the factual and legal challenges that come with opioid use in a workers’ compensation case. I will also address digestive and bowel issues that arise with opioid use and how those injuries can be covered by workers’ compensation.
Opioid addiction is a major public health and even political issue. Drug formularies are being pushed as a way to combat addiction by reducing the prescription of opioids in workers’ compensation cases. I plan on discussing why drug formularies should raise serious concerns not just from doctors, but from employees and employers. You can read my blog posts about formularies here, here and here.
Rod Rehm will be presenting on the topic of deposition preparation for plaintiffs in workers’ compensation cases. Rod is a Fellow in the College of Workers’ Compensation and has prepared hundreds of injured workers for their depositions in his long legal career. Earlier in his career Rod worked both as a prosecutor and criminal defense lawyer so he can draw on 40 plus years of litigation experience when it comes to witness preparation.
The short answer is, yes. Undocumented workers are entitled to most workers’ compensation benefits under Nebraska law. The exception is that undocumented immigrants are not entitled to the vocational rehabilitation benefit because the worker is not legally permitted to be in the country.
To some people, Nebraska law and this Kansas decision make sense, but unfortunately many people believe that undocumented workers should not be entitled to work comp. This argument fails for the following reasons:
If someone is injured at work and needs to seek medical treatment, it must be paid somehow. If it is not paid by workers’ compensation (even though the injury occurred at work), the cost of that treatment will be passed to the medical providers and the general-public. The employer will get away scot-free while everyone else would share the burden of mounting healthcare costs.
Employers should not get a benefit of hiring undocumented workers over citizens or documented workers. As stated above, if the employer does not have to pay workers’ compensation benefits for an injured, undocumented worker, the employer will be encouraged to hire undocumented workers over others as cost-savings. It is the employer’s responsibility to hire documented workers, but if it means the cost-savings of not having to pay work comp benefits, you can bet that employer will try to hire undocumented workers over others.
Similar to the previous reason, employers would be discouraged from taking safety measures to ensure the safety of its workers if it knows that it won’t be required to pay for undocumented workers’ injuries. This would make the workplace more dangerous for all workers.
Regardless of citizenship, an injured worker has an inalienable right to be treated for work injuries simply based on the fact that his/her job has made money for that employer. This is the whole point of the workers’ compensation system: to provide a quick (relatively speaking) and efficient way to get medical treatment and compensation for any worker that is injured while making money for that employer. Without the beneficiary of the work that cause the injury being required to pay work comp, this burden would inevitably be pushed to tax payers in one form or another. In other words, taxpayers should certainly want undocumented immigrants to get workers’ compensation benefits.
The biggest advantage this decision has for workers is the fact that a worker may dismiss a case at any time without prejudice under § 48-177 without having to worry about a counterclaim still hanging out there. In other words, this decision could prevent employers from forcing a trial before plaintiff is ready or if plaintiff wants to wait for trial until after the she or he is done treating.
Another benefit of this recent decision might be a little less obvious. Under Thomas v. Washington Gas Light Co., the U.S. Supreme Court held that a worker may be able to have workers’ compensation coverage in multiple states for the same accident/injury. The reason this is important with respect to counterclaims is that the injured worker now has the ability to dismiss the lawsuit to allow for potentially more-favorable benefits in another state, while still maintaining the option to return to Nebraska jurisdiction at a later date if necessary.
Sept. 11 was tragic for the victims who died at ground zero after the attacks on the World Trade Center. But, the lasting effects of the dust and particulates that filled the air after the collapse of the towers have caused ongoing health issues for numerous other victims: first responders who were not killed in the initial collapse of the buildings.
Fortunately, the federal government came to the aid of these first responders by enacting the James Zadroga Act, which provides free testing and treatment for first responders of the 9/11 attacks. However, had this act not been enacted, how would these workers, who have developed health problems from working at ground zero, have been treated under the Nebraska Workers’ Compensation Act?
The biggest gap in workers’ compensation coverage under Nebraska law for occupational diseases occurs when the injured worker (or in this case, the first responder) does not develop symptoms or the disease until later in life. In a situation like that, if the occupational disease first manifests (or becomes an injury) after the injured worker has retired for unrelated reasons, the injured worker would be left without indemnity benefits. In other words, the injured worker could get no workers’ compensation money if he or she was retired when the disease showed up. Further, if the injured worker dies as a result of the occupational disease, but is retired at the time the disease becomes an injury, his or her surviving spouse would not be entitled to any money either. See Olivotto v. DeMarco Bros. Co., 273 Neb. 672 (2007): the widow whose husband died from asbestos exposure was not entitled to indemnity because her husband had been retired for 23 years when mesothelioma manifested.
Thus, if 9/11 happened in Nebraska, first responders who develop an occupational disease later in life might not be fully covered under workers’ compensation laws without some sort further government intervention like the James Zadroga Act.
Some of this settlement money is earmarked for research and prevention of concussions. Before this settlement, however, the NCAA had already taken a step in the direction of trying to prevent concussions and head injuries by implementing new and stricter penalties for targeting – hitting defenseless players – and using one’s helmet as a weapon to hit another player.
Whether motivated by litigation or simply to prevent more injuries, some teams have also taken steps to minimize head injuries while playing football. The Nebraska Cornhuskers, for example, have implemented rugby-style tackling techniques in order to minimize head injuries. While the push for the new style of tackling is mentioned as a way to minimize targeting penalties, perhaps the greater reason is that the big-time football programs of the country, like Nebraska, are feeling the pressure to be proactive as a team in actually reducing concussions and the long-term effects of head injuries.
But do the sacrifices that individual players make outweigh the financial rewards to the universities and governing bodies for which they play?
The Big 10 Conference alone earned $448 million in television revenue in 2015 and paid its commissioner $2.3 million. Meanwhile, college football players risk limb and sometimes even their lives without any compensation for the risks they take for their schools. Leaving it all on the field should refer to competition and effort, not the sacrifice of a player’s future.
How do these judges end up on the bench? The workers’ compensation judges in Nebraska are not elected, unlike in some states. Instead, like all state-court judges in Nebraska, a pool of judicial candidates is screened and narrowed by a judicial nominating commission. These commissions are made up of both lawyers and laypersons from both political parties and also independents. After the narrowing process, the governor appoints a judge from that limited group. After the appointment, every six years, the judge will be up for a vote of the general public as to whether the judge should be retained on the bench. If the vote is to retain the judge, then that judge remains for another six-year term.
A system like this does a good job of narrowing the candidates for the governor to a group of the most qualified. Further, this process usually limits politics in the judiciary and it is greatly preferable to the states where judges are simply elected. Here is a good video explaining why.
When an injured worker has reached a point of maximum medical improvement – when healing has plateaued – that worker may be entitled to permanent disability benefits.
If the injury sustained is not an injury to the truck of the body (head, neck, back, internal organs, etc.), it is considered a “scheduled member” injury in Nebraska. Compensation for these scheduled member injuries are paid based on the level of disability to that member. Then, the Nebraska workers’ compensation laws prescribe a certain number of weeks of benefits depending on which body part has sustained the permanent disability.
The benefits are paid at 2/3 of the worker’s average weekly wage, for whatever percentage of disability is assigned. For example, a 10 percent impairment to a shoulder in Nebraska is paid at 2/3 of the average weekly wage for 22.5 weeks. This is based upon the chart below where a shoulder is worth a total of 225 weeks (i.e. 225 x 10% = 22.5 weeks). See the chart below to see how other body parts are paid in Nebraska: Source: Nebraska Revised Statute § 48-121
Number of Weeks
Third (Ring) Finger
Fourth (Little) Finger
Amputation at First Phalange
(half weeks for that finger)
Amputation ½ of First Phalange
(quarter weeks for that finger)
Any Other Toe
Hand (below elbow joint)
Arm (at or above elbow)
Foot (below knee)
Leg (at or above knee)
Loss of Eye or Reduction of sight to 1/5 normal
Hearing Loss (one ear)
Generally, any body part not listed above (head, neck, or back, as examples) would be considered and injury to the “body as a whole” and is paid differently.