Author Archives: Jon Rehm

Air ambulance charges continue to vex

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Concerns about air ambulance charges have migrated from the tiny niche of workers’ compensation blogs to national publications such as the Los Angeles Times.

Media outlets featured coverage of families were stuck with hefty medical bills when health insurance failed to come anywhere near paying the cost of air ambulance charges leaving consumers with charges approaching $50,000.

Air ambulances are exploiting a loophole in insurance regulation. Insurance, including health insurance, is regulated by states. But air ambulances are regulated by the Federal Aviation Administration. Air ambulance companies have been mostly successful in persuading courts that since they are regulated by the federal government, state insurance laws should be pre-empted and not applicable to them when it comes to their charges.

Many of the challenges to applicability to state laws in air ambulance charges have come from workers’ compensation cases. Workers compensation laws are state laws because the federal government had very limited power to regulate the workplace when workers’ compensation laws were enacted early last century.

Back in January I wrote about a new federal regulation that might allow some regulation of air ambulance charges. I still believe that the fact there is now some regulatory guidance on air ambulance charges may strengthen the case on preemption. The best fix to air ambulance charges may be federal legislation.

Nebraska recently enacted legislation that allows injured workers to delay the collection of unpaid medical bills that are part of a workers’ compensation case. I would imagine air ambulance companies will attempt to use preemption arguments to blunt the effects of that law.

Air ambulance charges are a subject of high interest to lawyers in Nebraska and other rural states. Injury victims in rural areas often require air transportation for emergency medical conditions. Air ambulance charges are often complicate the resolution of injury cases.

Federal preemption of air ambulance charges adds other insults to injury to rural residents and rural states. Air ambulance providers base their preemption arguments on the same law that deregulated commercial air travel. Airline deregulation greatly reduced commercial air travel in rural areas to the detriment of economic development and quality of life. So the same law that largely took away commercial air service from rural areas serves to soak rural residents who suffer serious injuries and illnesses.

If nothing else maybe air ambulance carriers should be subsidized through the Essential Air Service program so that their services are not unduly expensive to rural residents.

 

The offices of Rehm, Bennett, Moore & Rehm, 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 , , , .

Nebraska leads on first responder workers compensation benefits, but needs to do better

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The words “Nebraska” and “ahead of the curve” aren’t often used together. But when it comes to mental-mental workers compensation benefits for first responders, Nebraska has been well ahead of states like Florida, Washington and Oregon in providing those benefits.

Thomas Robinson, the author of the leading treatise on workers’ compensation, recently published an article summarizing recent state legislation expanding mental-mental benefits to first responders. Mental-mental workers’ compensation injuries are mental distress injuries not related back to a physical injury.

Nebraska first created mental-mental workers’ compensation benefits for first responders in 2010. The benefits were made permanent in 2012. In 2017 the benefits were expanded to prison guards and other state employees who work with high-risk individuals. Nebraska was well ahead of Florida, Washington, Connecticut, Oregon, New Mexico and Idaho which only recently expanded mental-mental workers’ compensation benefits to first responders.

Many first responders in Nebraska are volunteer firefighters. Those volunteers aren’t paid wages, but they are still covered by workers’ compensation in Nebraska. The coverage includes benefits for permanent and total disability.

I agree with Robinson’s arguments questioning the constitutionality of giving mental-mental workers’ compensation to first responders but not all workers. Robinson uses the example of truck drivers. I’ve written frequently about  the violence that low paid retail workers are exposed to in their work.

Workplace violence struck close to our office last week when a local man rammed his truck through the window of a Chick-Fil-A near Southpointe Mall in Lincoln. The man was armed with a stun gun and was shot by a sworn officer who reportedly driving through the drive-in. Under Nebraska law, the Chick-Fil-A employees could not make a workers’ compensation claim solely for mental distress. The officer would have a stronger argument for mental-mental workers’ compensation benefits.

I also agree with Robinson that teachers deserve mental-mental workers’ compensation benefits. The recent passage of mental-mental workers’ compensation benefits was partly motivated by a response to various high-profile school shootings. Other responses to school shootings have been less helpful. In April I wrote about work injuries sustained by teachers in Indiana during a mass shooting drill. In that injury a teacher was shot “execution style” with a paintball gun. The union representing teacher’s in Indiana drew attention to this incident in legislative testimony about school safety. That is one example of how unions help improve workplace safety.

The offices of Rehm, Bennett, Moore & Rehm, 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 , , , , .

Why can’t I find a workers’ compensation lawyer in Kansas?

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I received a call from a former client one afternoon.

“My sister got hurt at work in Kansas, but she can’t find a lawyer. Do you know someone?”

I had a similar question a few months earlier. So why is it harder to get a workers’ compensation lawyer in Kansas than it is in Nebraska?

The short answer to the question is Nebraska has much better workers’ compensation laws than Kansas, so more lawyers are willing to take workers’ compensation cases in Nebraska than they are in Kansas.

Because of a quirk of legal history, explained more in depth here, workers’ compensation laws developed as state-based laws. Bordering states can have vastly different workers’ compensation laws –Nebraska and Kansas are a prime example

Kansas v. Nebraska: Prevailing cause vs. contributing factor

Medical causation is a crucial issue in a workers’ compensation case. Causation standards are tougher for employees in Kansas. In Kansas work duties must be a prevailing factor for an injury to be covered under their workers’ compensation act. In Nebraska work just needs to be a contributing factor to the injury. 

In Nebraska, aggravation of an old injury is routinely covered by workers’ compensation. If a work combines with personal health conditions to cause an injury, that is covered by workers’ compensation in Nebraska. In Nebraska, in most workers’ compensation cases the parties aren’t arguing over whether workers’ compensation will pay, they are arguing over how much workers’ compensation will pay.

In Kansas, there are many more arguments about whether workers’ compensation will pay because of the more difficult causation standards in their workers’ compensation law.

The practical effect of the difference in laws is that it is hard to find a lawyer willing to take a workers’ compensation case in Kansas. Some Kansas attorneys view calls about workers’ compensation cases as borderline nuisance calls.  The shortage of lawyers in Kansas willing to take workers’ compensation claims particularly hurts injured workers that are far away from metropolitan areas that require lawyer travel.

In contrast, in Nebraska, lawyers who specialize in workers’ compensation usually have significant client bases outside of Lincoln/Omaha and travel to the less populated parts of the state on a regular basis. Nebraska pays many types of injuries on a loss of earning power basis, which means that injured workers in parts of the state that are remote from population centers potentially have more valuable cases. Lawyers in Nebraska are willing to travel to represent those employees. In Kansas that distance from a population center is hurdle to a lawyer accepting a case.

Sometimes employees can get get a good outcome in a Kansas workers’ compensation case. This also isn’t to say that there aren’t good workers’ compensation lawyers in Kansas. Tough laws can make for tough lawyers. But Kansas workers’ compensation laws are worse for workers than Nebraska laws, so fewer lawyers are willing to represent injured workers in Kansas than in Nebraska.

How to claim Nebraska workers’ compensation if you were hurt in or live in Kansas?

In order to bring a workers’ compensation case in Nebraska, Nebraska has to have jurisdiction over the employee and the employer. If you were hurt in or hired in Nebraska, you can bring a Nebraska workers’ compensation claim. If your employer is based in Nebraska or does business in Nebraska, your employer is subject to the Nebraska workers’ compensation act and you can bring a case in Nebraska.

Why are workers’ compensation laws better in Nebraska than in Kansas?

This is more of a political question than a legal question. Nebraska and Kansas are both conservative “red states”. I believe the difference between Nebraska and Kansas when it comes to workers’ compensation, and other issues, can be explained by the unique nature of Nebraska’s legislature. Nebraska is unique among the 50 states in having a one house or Unicameral legislature. More important are legislative rules in Nebraska that require a broad consensus to enact legislation. Nebraska also elects legislators on a non-partisan basis which further re-enforces the need for consensus to pass laws. These rules are further enforced by norms and customs within the Unicameral that make it difficult to push through legislation without broad support.

The current Governor has pushed to change those rules, but has not been able to bend the Unicameral to his will.

While big business interests will gripe about workers’ compensation in Nebraska, Nebraska has a business-friendly litigation climate in general which blunts the pressure to reduce workers’ compensation benefits in Nebraska. This is particularly true as workers’ compensation claims continue to decline. In short, there doesn’t seem to be the political will — at this time — to push for making Nebraska’s workers’ compensation laws like Kansas workers’ compensation laws.

The offices of Rehm, Bennett, Moore & Rehm, 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 , , , .

Will the employment at-will doctrine sink LGBTQ rights under Title VII?

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The Supreme Court will hear arguments Tueday about whether Title VII of the Civil Rights Act of 1964 expressly prohibits discrimination based on sexual orientation and gender identity. What you probably won’t hear about is the importance of the employment at-will doctrine in how the case is decided

The case for including sexual orientation within Title VII is based on the“sex plus” theory of discrimination which prohibits gender stereotyping. More broadly the equal protection arguments underlying the 2015 decision legalizing same-sex marriage would also support the inclusion of sexual orientation and gender identity within federal civil rights law.

In a brief the United States Department of Justice (DOJ) argued against expanding TItle VII protections to sexual orientation and gender identity based on a narrow reading of Title VII. Though the DOJ brief doesn’t mention the concept or doctrine of employment at-will expressly, its influence is felt strongly.

Employment at-will is judge-created or, according to an authoritative essay written by attorney Ronald B. Standler, a law professor-created doctrine created in the late 19th century. Employment at-will is a doctrine that holds an employer is free to fire an employee without cause at any time, for any reason without notice. On the flip side an employee is free to quit at any time. (Of course, employment at-will doesn’t stop employers from whining about employee ghosting. Employers also seek to enforce non-compete agreements against employees who quit)

One consequence of employment at-will, as pointed out on this blog, is that courts will narrowly interpret any exceptions to employment at-will doctrine.

Civil rights laws are exceptions to employment at-will. But opponents of expanding Title VII expressly to sexual orientation and gender identity are arguing to narrowly construe Title VII. The employment defense bar makes these types of arguments, often successfully, on a routine basis.

In a way the argument over whether to include sexual orientation and gender identity within Title VII is both groundbreaking and routine. I scratch my head when strong advocates of employment at-will  get apoplectic about the DOJ’s brief narrowly interpreting Title VII. All the DOJ is doing is narrowly interpreting an exception to employment at-will doctrine.

I also don’t understand the argument that laws prohibiting LGBTQ discrimination are economic development tools. I read an interesting article that could explain this idea.  The article was a critical exploration of the philosophy of Supreme Court Justice Clarence Thomas. Thomas, the second African-American Supreme Court justice has been critical of policies such as affirmative action. The article pointed out, somewhat sympathetically, that Thomas sees affirmative action as a matter of aesthetics among elites. In other words, the elite gets to chose what the elite looks like without having their power challenged. Inclusion is a form of marketing.

I think the idea of elite aesthetics explains how the professional-managerial class and their defenders can support LGBT rights in the workplace and employment at-will. Even if sexual orientation and gender identity are included within Title VII, those cases will still be difficult to win. Employers will still have what amounts to private sovereign immunity through exhaustion of remedies requirements. The National Labor Relations Board will still be making it harder for employees to form unions and not be subject to employment at-will.

But not all management-types are so willing to let their socially liberal instincts override their support of employer power in the workplace to create more exceptions to employment at-will. There are also many in the business community who don’t share socially liberal sentiments. I suspect this side may prevail in the argument over whether sexual orientation and gender identity are covered by Title VII.

Would it be logically inconsistent to allow same sex marriage but allow discrimination based on sexual orientation? Yes, but the importance of the employment at-will doctrine would at-least give that seeming inconsistency some logical explanation.

The offices of Rehm, Bennett, Moore & Rehm, 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 discrimination, employment law and tagged , .

What protections will pork plant workers have after the USDA allows faster line speeds?

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The United States Department of Agriculture (USDA) announced  it would allow pork processors like Tyson, Smithfield and Hormel, to speed up production. Worker safety advocates rightly pointed out that faster production line speeds lead to more injuries for meatpacking workers.

Fortunately, the USDA is not the last word on regulating working conditions in meatpacking.

Workers’ Compensation laws

State workers compensation laws make employers bear the costs of work injuries. In Nebraska a packinghouse worker need only show working conditions contributed to their work injury. Nebraska also compensates multi-member injuries based on how the injury impacts a worker’s ability to earn a living in many circumstances. This way of compensating an injury can take into account ability to understand English and size of job market in compensating a work injury. This means meatpacking workers, particularly immigrant workers, exposed to higher line speeds in Nebraska have the opportunity for fair compensation.

Nebraska also enacted a Meatpacking Workers’ Bill of Rights in 2000 to some fanfare. In my experience that law is mostly symbolic. I believe the amendments to  Neb. Rev. Stat. 48-121(3), enacted in 2007 which expanded the coverage for multi-member LOEP injuries is substantively more important for meatpacking workers than the meatpacking bill of rigthts.

But workers compensation laws can vary greatly by state. The same packinghouse worker in Kansas would have a more difficult time being compensated fairly for injuries caused by faster line speeds because of major differences between Nebraska and Kansas workers’ compensation law. Kansas workers can only collect workers compensation if they prove their work is a prevailing factor in causing their injury. This is a much tougher standard than the contributing factor required in Nebraska.

Unions

Unions are another factor that can help remedy the effects of faster line speeds in pork plants.  Meatpacking workers are about eight times more likely to be unionized than the typical private sector employee. In Nebraska, two major pork plants, Smithfield in Crete and Hormel in Fremont are unionized. But not all plants are unionized and union plants may feel pressured to compete with non-union plants regarding line speed.

OSHA

Meatpackers have pointed out that United States Department of Labor/Occupational Safety Health Administration (DOL/OSHA) is still regulating workplace safety. They have also pointed out that the Obama USDA moved to increase line speed in poultry production in 2014.

It is true the Obama USDA approved faster line speeds for poultry workers, but the Obama DOL was relatively aggressive in protecting poultry workers. The Trump DOL has been less aggressive in enforcing workplace safety rules. I would imagine they will become even less aggressive now that Eugene Scalia has been confirmed as Secretary of Labor.

Scalia, the son of the late Supreme Court Justice, argued against an OSHA ergonomics rule proposed by the Clinton administration which likely would have prevented many overuse injuries. The younger Scalia’s bid for Labor Secretary was supported by high profile legal scholar and Obama regulatory czar Cass Sunstein. Sunstein’s support of Scalia shows the DC legal establishment is ambiguous at best, hostile at worst to federal regulation of workplace safety.

If Donald Trump wins a second term, the DOL will likely turn a blind eye to the occupational effects of faster line speeds signed off on by the USDA. If the Democrats take over in 2021, it’s harder to know what will happen.

Some pundits think a Democratic president would be more aggressive in defending labor and employment rights. Steven Greenhouse seems to be particularly optimistic about the plans of the major Democratic candidates. I would note that Greenhouse doesn’t seem to have factored in workplace safety issues in his grades of the candidates.  I don’t want to delve too deeply into the Democratic presidential primary right now. I hope any future Democratic administration has a better record on workplace safety than the Obama administration did.

The offices of Rehm, Bennett, Moore & Rehm, 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 , , , , .

Does employment at-will deter whistleblowers?

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Photo credit to Axios

A whistleblower, reportedly a CIA officer assigned to the White House, set off a political and constitutional firestorm by reporting allegations that the President conditioned delivering military aid to the Ukraine on that country investigating one of his political opponents.

Did on-the-job protections for federal workers make the whistleblower more likely to come forward?

It’s hard to know why the whistleblower came forward. But assuming the whistleblower had civil service protections, an employee of the federal government has more job security than your typical employee.

Employees of the federal government can only be fired for just cause. A typical employee is an at-will employee which means that they can be fired at any time for any reasons. While whistleblower laws protect all employees, the fact that federal employees have a just cause standard for termination gives them an extra layer of protection from getting fired than at-will employees.

State employees in Nebraska have similar protections to federal employees. I think it is reasonable to argue that those protections government employees somewhat more likely to report misconduct as they have less reasons to fear for their jobs than a typical at-will employee.

That’s not to say that whistleblowers just need to fear for their jobs. President Trump mused about killing whistleblowers. The Obama administation routinely prosecuted whistleblowers. Less prominent whistleblowers are usually subject to all sorts of petty harassment on the job. I’ve written before about how government employers seem to excel at making employees miserable if they want to get rid of an employee.

But a typical government whistleblower has less immediate fear about how they are going to earn wages than a typical private sector whistleblower.

A union contract gives private sector workers similar on the job protections to government employees. Many government employees are also covered by union contracts which helps them to further to protect their rights on the job.

Some argue that it’s too hard to fire public employees, but whistleblowing serves an important function in a free society. How many fewer whistleblowers would there be if government employees were just at-will employees who were easy to fire?

I have written a lot about employment at-will lately because the importance of employment at-will explains so much about employment law. I believe the question of whether Title VII expressly protects workers on the basis of sexual orientation and gender identity could turn on the value placed on the employment at-will doctrine regardless of whether that influence is acknowledged.

Employment at-will establishes the legal relationship between employee and employer. The employee-employer relationship can also have an impact beyond the immediate boundaries of the workplace. I think it’s worth exploring the relationship between whistleblowing and the fact that most government employees are not at-will employees.

The offices of Rehm, Bennett, Moore & Rehm, 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, Nebraska and tagged , .

Why injured workers stop going to the doctor even if they are still in pain

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Some work injuries never really resolve. Often an injured worker works through pain in order to support themselves and their family. Many workers in this situation stop seeking medical treatment for their work injury – and that often causes major problems for the injured worker.

Besides the obvious health issues, there are two legal problems that arise when an injured worker gives up on medical care. The first is that it lowers their chances of getting future medical care awarded in court. Injured workers who stop seeking medical treatment for their injuries can also undermine their credibility with a judge. The assumption is that if an injured worker isn’t seeking medical treatment they really aren’t hurt and any testimony about pain or limitations lacks credibility.

But there are many good arguments to make about why injured workers’ stop seeking medical treatment.

1.Workers’ compensation stops paying medical benefits – When workers’ compensation stops paying for medical care, many injured workers can’t afford to pay for treatment.

1a. Injured workers are told their case is “closed” by an insurer or employer – Insurance adjusters and nurse case managers often tell injured workers that their case is closed when their doctor places them at maximum medical improvement or MMI. This often accompanies a check for permanent disability that many workers believe is a settlement that closes their case.

A workers’ compensation case stays open for at least two years from the last payment of benefits.  A case is only closed if it goes to trial and gets dismissed or if the injured worker signs settlement paperwork that is filed with the Nebraska Workers’ Compensation Court.

But, it’s easy to understand why an injured worker may think their case is closed and not go to the doctor in this situation. After all they have been told by an authority figure that their case is closed and they received a check for permanent disability.

Many self-insured employers in Nebraska also discourage injured workers’ from seeking medical care after the employee is released from care by a doctor.  

2. Non-existent or bad health insurance – An injured worker can continue seeking medical treatment in a denied workers’ compensation case by having their health insurance pay. Some employees do just that whether it’s under their insurance or under a spouse’s insurance. Taking that action can be  helpful. But if you don’t have health insurance because it’s not offered or because you can’t afford it, that’s not an option.

High deductible and co-pay insurance can be almost as bad as no insurance. I’ve seen two employees with supposedly “good insurance” have medical bills in disputed workers’ compensation claims sent to collections. Nebraska has enacted legislation to protect injured workers from debt collectors, but an injured worker would likely need to get an attorney to enjoy the protections of that law. Often times injured worker don’t want to or are afraid to contact attorneys. Adjusters and other company health personnel will also discourage employees from calling lawyers.

3. Unable to take time off from work to go to doctor — Medical clinics tend to be open during business hours when injured workers are working. That time crunch can also be amplified by having to commute to a job.

Insurance and management side readers may say “What about FMLA?” FMLA could allow an injured employee to take time off for medical care. But some employees may not be aware of their rights under the FMLA. Employers usually also require paperwork for FMLA which requires the cooperation of a medical doctor which can create a hurdle for some employees — particularly those without a good relationship with a doctor.

Not all employees are eligible for FMLA.  Maybe their employer has fewer than 50 employees. Maybe they haven’t been employed for more than a year.  Maybe an injured worker has exhausted their FMLA leave during their work injury.  Maybe the employee hasn’t worked enough hours because of the injury to be eligible for FMLA.

As added insult to a work injury, an employee taking time off work to see medical treatment would be taking intermittent FMLA. Employers hate intermittent FMLA and often employees who use intermittent FMLA are often suspected of fraud.

Urgent care clinics and emergency rooms are available for treatment after hours. But going to an ER complaining of pain is a good way to get tagged as a drug seeker by the insurance industry.

4. Worker is alienated from treating doctors — Some employees don’t go to the doctor if they are in pain because they don’t trust or like their doctor. I will be the first to admit that some injured workers are unreasonable people. But some doctors have a lousy bedside manner. Some doctors are overly cozy with nurse case managers who work for insurers or employers. When either of those two factors are present, even a reasonable and personable injured worker may feel that treating with that doctor is futile.

I mentioned suspicions of drug seeking behavior by injured workers earlier in this post. Concerns about drug abuse by injured workers have been heightened over concerns stemming from the opioid crisis. As a result, doctors are even more reluctant to prescribe pain medication. As I pointed out in April, concerns about opioid addiction are good pretext for insurers and claims administrators to wash their hands of medical care obligations under workers’ compensation.

But if opioids and benzos are off the table for long-term pain management, what are the alternatives? Currently, there isn’t much that is widely accepted. If injured workers hear from their doctors that they can’t do anything about their long-term pain, that message will discourage an injured worker from seeking medical treatment.

Some doctors are willing to perform novel pain management techniques like stem cell therapy or prolotherapy. But since these methods are relatively new, so they aren’t widely accepted. Since novel ways to treat pain aren’t widely accepted, it’s easy for insurers and claims administrators to deny those novel treatments.

 

The offices of Rehm, Bennett, Moore & Rehm, 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 , .

What The Office gets wrong and right about workers compensation

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“What do you want to watch?”

“I don’t know.”

“How about The Office?”

“Okay.”

I had this conversation with my wife a few weeks ago after we put our son to bed. That night we ended up watching Episode 2 of Season Six. In that episode warehouse manager, Daryl, makes a workers’ comp. claim for a knee injury. The claim leads to Dwight to suspect fraud.

Of course, I thought the episode got a quite a bit wrong about workers’ compensation, but the episode got some things right as well.

Workers’ compensation as a substitute for health insurance — Daryl claims in the episode that he wouldn’t have to claim workers’ compensation if the United States had “universal health care.”  This is a misconception for two reasons.

One study showed the expansion of health insurance under the Affordable Care Act  means more claims are pushed onto workers’ compensation because health insurers don’t want to pay benefits for medical treatment that should be paid for by workers’ compensation.

Secondly, Canada has universal single-payer health insurance. Canada still has workers’ compensation laws.  Work injuries also lead to income loss, so workers’ compensation doesn’t just pay medical bills, but it also provides payment for loss of income and permanent disability.

So, to quote Oscar Martinez, actually even if an employee has health insurance, they could be claiming workers’ compensation for both income loss reasons and because their health insurance is pushing them to claim workers’ compensation.

Presumption of fraud — Dwight assumes that Daryl’s claim was fraudulent.  At the end of the episode it is strongly implied that Daryl lied about how he hurt his knee. This plot development lines up with the presumption that workers’ compensation claims are almost per se fraudulent. This ignores the fact that most serious workers’ compensation fraud is committed by employers and medical providers. (For the record misuse of company property isn’t a per se defense to denial of workers’ compensation benefits.)

What “The Office” Gets right about workers’ compensation

The stigma of workers’ compensation

The Office episode accurately portrays the skeptical attitude that many employers have about workers compensation. Dwight and Toby’s spying on Daryl is not out of the ordinary for employers. Daryl’s comment that he wouldn’t be filing a claim if he had better health insurance also indicates an attitude on his part that he is doing something wrong by filing a workers’ compensation claim.

Surveillance

The episode also includes Dwight and Toby spying on Daryl. Surveillance of injured workers is fairly common. I have also seen my share of managers engaging in the type of freelance surveillance of the type engaged in by Toby and Dwight.

Employment law issues and workers’ compensation

The episode also portrays the fundamental truth about Human Resources – they are there to protect the company. Even if HR comes off as being on the employee side, as shown by Toby’s fist bump to Daryl when Daryl turns in his injury claim, Toby is willing to go along with Dwight’s “investigation” of Daryl’s injury. Further the normally mild-mannered Toby even goes so far to yell an insult at Daryl’s sister when he mistakenly thinks she is Daryl committing workers’ compensation fraud.

The story line ends with Dwight filing a grievance against Daryl for misusing company property and Daryl filing a grievance against Dwight and Toby for spying on him. The episode is accurate that work injuries often create employment law issues related to retaliation. While the Daryl claims workers’ comp. plot line ends with the episode, workers’ compensation retaliation can have long-lasting and serious effects.

The scene where Daryl confronts Toby and Dwight about the spying also contains an undercurrent of racial tension between Daryl, who is black, and Toby and Dwight – who are white. Workers’ compensation retaliation can also be mixed in with other forms of discrimination such as racial discrimination.

The offices of Rehm, Bennett, Moore & Rehm, 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.

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