Author Archives: Brody Ockander

Nebraska Supreme Court rules on employment risk, attorney fees and third party claims

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The Nebraska Supreme Court has made three recent rulings about workers’ compensation

Three important cases have recently come down from the Nebraska Supreme Court regarding workers’ compensation claims.

Probably the case with the biggest impact is Maroulakos v. Walmart case. In that case, the Supreme Court affirmed a decision by the trial court that found that an injury was not compensable when a worker was injured because of an “idiopathic” fall. What makes this case distinct from its predecessors is that it appears as though there was possibly evidence that there was an increased risk to the injured worker, which could have made the idiopathic fall compensable. However, the trial court did not explore that option and the Supreme Court found that it could not make a determination on an issue that was not at issue during the trial court. In other words, it appears that the Maroulakos case puts an extra burden on the Plaintiff to ensure that an “increased danger” analysis is overtly pled and argued at trial for idiopathic falls. The concurrence in that opinion hints that the at the trial court level, the court probably should have conducted an analysis as to whether there was an increased-danger when there was evidence presented that could contribute to that analysis of an idiopathic fall.

Another recent case was Dragon v. Cheesecake Factory. In Dragon, the work comp case reached a settlement that was accomplished via a settlement release under Section 48-139(3). The settlement was not paid, however, within the 30-day limit proscribed in 48-139(4) and thus, the Plaintiff argued that he was entitled to a 50% penalty for the late payment. The trial court denied the penalty under a theory that it did not have authority to award a penalty after the release had already been signed. The Supreme Court overturned the finding of the trial court and awarded the penalty based on the fact that the Nebraska Legislature cleared up any ambiguity in the statute in awarding penalties for settlements that are not paid within 30 days.

The final case that recently came down worth discussing is Gimple v. Student Transp of America. In Gimple, there are two take-aways. First, if there is a third-party action, along with the work comp claim, the Work Comp Court does not authority to make a determination of future credits for the employer or work comp carrier based on any monies paid in that their-party action.

Second, if there is a stipulation and no dispute as to an injury; then, there is a permanent impairment assigned to that injury, the Defendant must pay the permanent partial disability in a timely manner, within 30 days. In other words, there is no reasonable controversy.

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 attorney fees, employment risk, Nebraska, third party claims, Workers Compensation and tagged , , , , .

Are surveillance drones watching injured workers in Nebraska?

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An eye in the sky watching injured workers?

Nearly 7 years ago, I wrote a blog about employers and insurance companies using surveillance of injured workers to fight paying workers’ compensation benefits in hopes of finding any reason to reduce or deny an injured workers name. Recently, our Plaintiff lawyer colleagues in other states have noticed use of drones for video surveillance of their clients.

I have not personally experienced “drone surveillance” of any of my clients yet, but I am sure the insurance companies will soon find a way to follow suit in Nebraska. In discussions with other workers compensation lawyers throughout the country, other lawyers have that mentioned insurance companies have used drone-surveillance against their clients in multiple states.

Is drone surveillance even legal? Well, that might depend on what state you live in. However, the FAA does have guidelines on the use of drones and restrictions of how those drones may be operated. Some surveillance tactics may run afoul FAA rules.

Also, many states have enacted their own laws to protect citizen’s privacy from drone-use and cameras. Here are a few examples:

Arkansas forbids the use of drones to invade privacy

California forbids the use of drones to invade a person’s privacy and to record anyone without his or her consent.

Texas Code Section 423.002(a) lays out specific situations in which drones with cameras may be used and insurance surveillance is not one of them.

Virginia makes it a criminal misdemeanor if drones are being used to harass if given notice to desist.  

Florida also prohibits a person from using a drone to record someone if such person has a reasonable expectation of privacy, with the presumption being that someone has a reasonable expectation of privacy if they are on their own property. 

While it is good that states are acting to protect privacy from the intrusion of aerial drones, there may be a legal fight over whether federal rules should preempt state laws about drones.

While aerial drones may be used to sniff out workers’ compensation fraud by employees, I doubt they will be effective in stamping out the larger problem of employer and provider fraud in workers’ compensation.

In summary, while I have not seen it in Nebraska yet, it is a possibility that some day drone surveillance will be used here. However, given all of the regulations (along with the cost and conspicuousness of drones) it is doubtful that drone surveillance would be used. If it is used, Nebraska may have to enact some laws similar to these other states with regards to drone use.

 

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 Fraud, Nebraska, surveillance, Workers Compensation and tagged , , , , .

Workers will be hurt by reversal of EPA asbestos ban

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Donald Trump-branded asbestos being exported from Russia.

The EPA is now allowing for asbestos to be used in manufacturing  again. In fact, asbestos sold by a Russian company is actually branded with the President’s face.  What does this mean for workers? Potentially this would be bad, real bad, for many workers in manufacturing and frankly anyone who may come in contact with asbestos. 

For decades it has been common knowledge that exposure to asbestos causes Mesothelioma (a fatal cancer of the mesothelial lining in the lungs). In fact, it is estimated that each year 2,000 to 3,000 people are diagnosed with mesothelioma each year in the United States, with 40,000 annual deaths attributed to exposure to asbestos.

Here is a vivid description of how asbestos effects the body posted by a user on Reddit:

Imagine swallowing a big handful of straight pins. Now instead shrink them down until they’re microscopic. Now multiply the number you had by tens of thousands (if not millions, billions, etc. Difficult to truly get a reasonable scale here). That’s what’s happening to your lungs when you inhale asbestos fibers.

This is what you’re dealing with. You inhale it, it goes through your airways causing microtears which lead to inflammation. That’s not a huge deal until it happens on a large enough scale (such as asbestos exposure). To make things worse, it will stick into the linings of your airways, lungs, etc. It doesn’t go away. Everywhere they stick in is going to be permanently inflamed. Chronic inflammation can damage your DNA and can lead to cancer. A lot more goes into it than that, but you can safely say chronic inflammation is bad news regardless of why it’s happening.

Another way of thinking of it: asbestos is like a splinter that will never go away. Except now you have millions of them and they’re all throughout your airways.

In other words, this is a substance that literally kills people, and has been known to kill people for decades. While exposure to asbestos may provide workers’ compensation benefits and tort recovery for the exposed worker and/or his family, it would be better for all to simply not be exposed to the substance at all.

The EPA’s rule on asbestosis is the just the latest move by the agency that increases the risk of workers’ being exposed to toxic substances on the job.  While former EPA Administrator Scott Pruitt was forced out over numerous charges of petty corruption and became a laughingstock and lightening rod for critics of the Trump administration, Pruitt’s anti-workplace safety agenda continues under much less controversial successor.

In a bit of positive news for workplace safety, last Thursday the 9th Circuit Court of Appeals ordered the EPA to ban the use of the pesticide chlorpyrifos. It will be interesting to see if the ban is challenged and the outcome of a potential Supreme Court case.

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 Asbestos. EPA, Mesothelioma and tagged , , .

What’s your workers’ compensation case worth? What’s your average weekly wage?

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AWW: One variable in determining what a case is worth

In Nebraska, you are entitled to 2/3 of your average weekly wages when you are off work for a workers’ compensation injury. You may also be entitled to permanent disability based on 2/3 of your average weekly wage as well. But what does “average weekly wage” mean and how do you calculate it?  

How to calculate Average Weekly Wage (AWW)

Generally speaking, the AWW of a work comp claim in Nebraska are calculated based on a workers’ wages in the 26 weeks before the date of the accident. If the injured worker has not been there for 26 weeks, often the AWW would be based on the number of weeks the worker has actually worked. In rare instances (e.g. if someone is injured within the first few days on the job), the AWW might actually be calculated by using other employees in a similar job as the injured worker.

Tips are normally included in the AWW. Commissions or bonuses are also likely included if they were fixed at the time of hiring. Alternatively, other benefits, such as health insurance or room and board are usually not included in the AWW calculation, with the exception that the room and board potentially could be included if the money value of the room and board was fixed at the time of the hiring.

Abnormally low weeks from the 26-week-period may also be excluded in the calculation, as not to artificially drive down the true average earnings. Overtime hours are also included in the AWW, but it may only be calculated as “straight time” and not at premium pay. For example, someone making $20 per hour who works 45 hours per week, would only be entitled to 45 x 20 = $900 AWW (and not time-and-a-half for the 5 extra hours of overtime). The workers’ compensation rate in this example (for temporary and permanent benefits) would then be $900 x 2/3 = $600.

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 average weekly wage, Nebraska, Workers Compensation and tagged , , , .

Theodore Roosevelt Pushed For Protection Of Workers

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Workers’ Compensation benefits are often confusing and seemingly unfair at first glance to many of my clients. As a result, I often find myself explaining to these clients how we, as a country, got to where we are with workers’ compensation laws and why the benefits are more limited than other civil lawsuits.

In explaining work comp laws, I usually give a brief description of the work comp system that was first developed in the early 20th century and a description of the “Grand Bargain”, the premise that employers pay for some benefits of their injured employees in exchange that the employee cannot sue that employer for negligence in civil court.

I, and many scholars, could go on and on about the history of the Grand Bargain and how it was strengthened/reworked in the 1970’s. Also, scholars can (and have), go on about the recent “reform” to workers’ compensation laws that have eroded workers’ rights in domino-fashion in many states by anti-worker legislation.

Nevertheless, I think the most poignant description of why we need to protect workers, and continue to protect workers, is this quote from our 26th president, Theodore Roosevelt, in calling for further reform of laws that Congress passed for employers’ liability laws:

In spite of all precautions exercised by employers there are unavoidable accidents and even deaths involved in nearly every line of business connected with the mechanic arts. This inevitable sacrifice of life may be reduced to a minimum, but it can not be completely eliminated. It is a great social injustice to compel the employee, or rather the family of the killed or disabled victim, to bear the entire burden of such an inevitable sacrifice. In other words, society shirks its duty by laying the whole cost on the victim, whereas the injury comes from what may be called the legitimate risks of the trade. Compensation for accidents or deaths due in any line of industry to the actual conditions under which that industry is carried on, should be paid by that portion of the community for the benefit of which the industry is carried on–that is, by those who profit by the industry. If the entire trade risk is placed upon the employer he will promptly and properly add it to the legitimate cost of production and assess it proportionately upon the consumers of his commodity. It is therefore clear to my mind that the law should place this entire “risk of a trade” upon the employer. Neither the Federal law, nor, as far as I am informed, the State laws dealing with the question of employers’ liability are sufficiently thorogoing.

— Theodore Roosevelt: Sixth Annual Message, December 3, 1906.

 

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 Government, Legislation, Workers' Compensation and tagged , , .

Firm Attorneys To Speak At Nebraska Association of Trial Attorneys Workers Compensation Seminar

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Rod Rehm, Jon Rehm and Brody Ockander will be presenting at the Nebraska Association of Trial Attorneys Workers Compensation Seminar on Friday April 21st in Omaha. Here are short summaries of what each lawyer will present about:

Brody Ockander

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.

Jon Rehm 

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

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 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 Firm News, Workers' Compensation and tagged , , , , , , , , .

Kansas Supreme Court Decides Whether Undocumented Immigrants Are Entitled To Workers’ Compensation Benefits

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Are undocumented immigrants entitled to workers’ compensation benefits in Nebraska?

Recently, the Kansas Supreme Court examined the same question that has been previously answered by the Nebraska courts.

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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 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 Workers' Compensation. Workplace Injury and tagged , , , , .