Author Archives: Jon Rehm

How to get paid regular wages for missing work due to a medical visit in a workers’ compensation case

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Can an injured worker claim their regular pay if they go to a medical appointment as part of their workers compensation claim? The answer is yes. But like most legal questions there are always qualifications.

Why you can get paid wages for workers’ compensation medical visits
First, per the Fair Labor Standards Act (FLSA) and federal regulation 29 CFR 785.43, getting paid for time spent going to a doctor applies when the employee seeks treatment on site or during regular work hours. An employee might have a harder time claiming pay if they are forced to seek medical treatment during non-work hours. But I believe it would be a close and interesting legal issue if time spent going to employer-compelled medical treatment during non-work hours would be covered under the FLSA.

Secondly, per case law, it seems like that medical treatment would need to be expressly authorized and set up by the employer.  It might be more difficult for an employee to get paid their wages while taking time off of work for medical treatment in a disputed workers’ compensation case.

Another complication may be if an employee takes paid leave to attend an employer-ordered medical appointment. Arguably since paid leave or paid time off isn’t mandated by law it might be difficult to bring a claim under the FLSA for the forced taking of paid leave. State wage and hour laws like the Nebraska Wage Payment and Collection Act may provide a remedy.

Why wage and hour law can be better than workers’ compensation claims when it comes to wage payment issues

So why would an injured worker want to claim unpaid wages instead of temporary disability? Several reasons, in Nebraska temporary total disability pays two-thirds of your pay and temporary partial disability pays two-thirds the difference between reduced hours and your average weekly wage. But under wage and hour law, a workers can claim their full wages for time spent going to certain medical visits as part of their workers’ compensation claim.

In Nebraska, overtime pay is not taken into account in determining workers compensation benefits. But under the Fair Labor Standards Act an employee can claim overtime pay. The Nebraska Workers compensation act also caps benefit rates at $882 per week. There is no cap to hourly pay under the FLSA.

Nebraska also has a one week waiting period for benefits. In injuries where disability lasts less than six weeks, that first week of disability isn’t paid. There is no waiting period for unpaid wages under the FLSA.

I’ve written about how the Nebraska workers’ compensation act has weak attorney fee and penalty provisions that make it easy for employers to shortchange employees when it comes to workers compensation disability benefit payments. In contrast the FLSA has strong attorney fee and penalty provisions that make it more attractive to bring claims for smaller amounts. Smaller FLSA claims can also be combined into collective action claims.  The Nebraska Workers’ Compensation Act, like most of other workers’ compensation laws, does not allow for collective or class action cases.

The only disadvantage of getting wages over workers’ compensation benefits is wages are taxable while workers compensation benefits are not taxable.

How an employee can bring a wage claim for time spent going to the doctor for workers’ compensation case.

The most important part of a wage and hour case for a worker is being able to precisely prove lost time. This should be simple for injured workers as medical visits usually only take place a few times a week at the most. Many injured workers keep track of mileage already as mileage benefits are part of medical benefits under workers’ compensation in Nebraska. If you can keep track of mileage, you can also keep track of time spent going to medical appointments. If an injured worker turns in mileage to their attorney or workers compensation claims department, there is no reason they can’t turn over claims for unpaid wages to Human Resources directly or through their attorneys.

Anti-retaliation provisions

Retaliation is always a concern of workers who exercise their rights at work. Fortunately, the FLSA makes it unlawful for an employer to retaliate against an employee for exercising their rights under the law. Nebraska and most other states prohibit employers from retaliating against workers who file workers compensation as well.

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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Who do rules about texting and driving really protect?

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OSHA came out with guidelines about mobile device use while driving by employees. So why do I have mixed feelings something that most people would think is a good idea?

I believe texting and emailing while driving is a terrible idea and a clear safety hazard. But, management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims.

Management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims. They can argue either that mobile device use by an employee by driving is a deviation from employment duties. That may be difficult to argue if a travelling employee was using a mobile device while driving for work purposes.

In the alternative the employer may affirmatively allege that mobile device used was a safety violation that would disqualify them from receiving workers’ compensation. This is a difficult burden for an employer to meet. OSHA suggests that employers set up a “disciplinary action system” for workers who violated driving safety rules. Having written rules against a practice can make it easier for an employer to defeat a workers’ compensation claim by arguing an employee was willfully negligent.

Generally, workers compensation laws are favorable to workers who are injured while travelling, this known as the travelling employee doctrine or presumption. But in fairness to the insurance industry, this legal doctrine developed before the use of mobile phones.

In fairness to OSHA, their guidance on mobile phone usage was also meant to protect workers from being forced to use mobile devices while driving. Those who work and live in relatively remote areas know the term “windshield time” to describe long car trips. There is intense pressure to use that time productively. There is a strong temptation to text or email while driving even though you know the hazards.

The guidelines may give employees some protections against retaliation if the refuse to text or email while driving. But anti-retaliation laws are only as good as the court cases that interpret them and some courts have recently began to curtail protections afforded by those laws.

I speak from first-hand experience. I do a lot of long-distance driving for work.  If areas like rural Nebraska were better served by air, rail and bus service, I wouldn’t need to drive so much. The same goes for many workers in states like Nebraska. But thanks to transportation deregulation those of us who travel to and within rural areas are stuck in our cars during business hours.

Texting and driving creates risks for other motorists in addition to the drivers who text and drive. But the law already punishes drivers who cause accidents through use of their mobile devices. Drivers who text and drive can be punished criminally and be held accountable in civil cases. Accountability for employers who create dangerous working conditions is mostly limited to state workers’ compensation laws.

I believe the risk of distracted driving is apparent to any adult. Why does OSHA need to issue guidance?  I suspect it has something to do with my point about employers using rules against cellphone usage while driving to deny workers’ compensation claims.

But while OSHA is issuing guidelines about the obvious risk of texting and driving, the United States Department of Agriculture is overlooking the obvious risk of overuse injuries to packinghouse workers. The USDA in the Trump and Obama administrations have allowed meat processors to speed up lines to the detriment of workers. I hope if there is a new presidential administration next year, that administration will use its rule-making power to make workplaces safer and not give employers ways to dodge their responsibilities under state 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.

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Three partial fixes for difficult workers’ compensation problems

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A lot of my blogging stems from my experience representing my clients in workers’ compensation cases. Last fall, I wrote a couple of posts: “Why so few workers get vocational rehabilitation in Nebraska” and “Why injured workers stop going to the doctor even if they are still in pain” after hard fought litigation had concluded.

I don’t know if it is apparent from the tone of those posts, but they were written from a sense of discouragement and disappointment. In both posts I wrote about the difficulties that injured workers have in receiving fair workers’ compensation benefits.

Law students, law professors and other legal analysts spot legal problems; trial lawyers need to find solutions for legal problems. After reading and reflecting, I’ve come up with three partial solutions for two major problems for injured workers in workers compensation cases.

None of these solutions are ideal or useful in every circumstance. These problems call out for pro-worker reforms to workers’ compensation laws, but even without “structural” solutions, lawyers for injured workers don’t just have to throw up their hands and tell their clients there is nothing they can do for them when faced with these difficulties.

Problems: The TTD/PPD gap.

Solution: Apply for unemployment.

I feel like I’ve written extensively about the problem of the long delay between when temporary benefits end and when permanent disability benefits start. Tara Reck in Washington state wrote a post about advising clients to apply for unemployment benefits in that situation. I kicked myself for not thinking of that before. (By the way, Washington cuts off temporary benefits after a vocational counselor determines an employee can return to work. That would significantly shorten the gap time.)

Applying for UI benefits in this situation is a good idea for a lot of reasons. One, Once a worker is at MMI, they are usually able and available for work. Two usually unemployment requires an extensive job search as a condition of receiving benefits. That job search can be evidence in a workers’ compensation case which can help prove up permanent disability. Evidence of a diligent job search by an injured worker usually also boosts credibility with a judge

Finally, a successful application for unemployment benefits means that an employee has steady income and maybe even finds a job. Having a steady income lessens the pressure on the injured worker to settle their workers’ compensation case.

Problem: The delay between the end of TTD and beginning of PPD

Solution:  Ask court to appoint counselor for LOEP with just FCE restrictions

Part of the delay between the end of temporary and start of permanent disability benefits is the difficulty in figuring out disability. Part of this delay can be explained by the practice of having a doctor ratify or sign off on functional capacity evaluation or FCE results obtained by a physical therapist. Doctor-endorsement of work restrictions is believed by some to be necessary for the appointment of a vocational counselor to perform a loss of earning power evaluation.

Physical therapists have an uncertain status as experts within the workers’ compensation court. But I was able to get a vocational counselor appointed with just FCE restrictions from a PT. (Feel free to contact me for a copy of the order) As a precaution, I did get the findings endorsed by a medical doctor. But I would encourage other plaintiff’s lawyers to push the issue with the trial courts in Nebraska. I believe trial judges are aware of the gap issue and are sympathetic to employees on the issue. With a concerted effort, the plaintiff’s bar in Nebraska may be able to reverse the custom of having a medical doctors endorse FCE restrictions from a physical therapist.

Problem: Future medical in a denied claim where the employee can’t afford future medical care.

Solution: Use company provided medical care

I wrote a post about why injured workers stop going to the doctor even if they are in pain. One of the main reasons why employees stop seeking care is cost. Another reason why employees stop seeking care is because employers manage medical of their injured workers and encourage doctors to release workers without recommendations for future medical care. This problem is particularly acute for employees of self-insured companies or quasi self-insureds with high deductible coverage.

But these self-insured employees usually often provide onsite occupational clinics. These providers are often on the front-line of discouraging claims. Many injured workers don’t seek treatment there because of that reason.

But those clinics are convenient and free of charge to employees who use them. They are a good way to bolster the case future medical if an employee is regularly seeking treatment there for work-related symptoms.  The fact that an injured worker continues to seek treatment at onsite clinic can also help their case by adding legitimacy to their testimony about the nature and extent of their limitations and symptoms from their work injury.

These occupational health notes are a discovery gold mine in my view. Not only do they give you what amounts to a free medical summary, they also document time off work which is incredibly helpful in proving entitlement to temporary disability benefits. The notes can also be a good source for admissions against interest by the employer.

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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Want to really be “open for business”? Outlaw discrimination against younger workers in Nebraska

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One way to attract and keep young workers in Nebraska; stop discriminating against them/

Last week, the Nebraska Chamber of Commerce joined their companion organizations in Omaha and Lincoln in endorsing amending Nebraska’s fair employment statute to outlaw discrimination based on sexual orientation and gender identity.

Proponents of expanding civil rights protections to LGBT Nebraskans have pitched this proposition as an economic development tool meant to keep and attract younger Nebraskans who would otherwise flee a state that allows discrimination not allowed in other states.

Maybe I’ve spent too much time tangling in the trenches with lawyers for Nebraska’s big businesses. Maybe I’m just a Bernie Bro. Maybe both, but I have a hard time keeping my eyes from rolling when I hear the “Open for Business” approach to civil rights parroted by professional progressives in our state’s unicameral and mini-Beltway. (Lincoln has a K Street with tons of lobbyists offices, just like D.C.)

I mean for-you-know-what’s sake, any employment protections endorsed by the Chamber of Commerce are bound to be milquetoast at best.

But let’s assume some merit to the “Open for Business” approach. Let’s assume civil rights laws are an economic tool. How else could civil rights laws in Nebraska be amended to help attract and keep young people in Nebraska?

How about amending our age discrimination laws to prohibit discrimination against younger workers?

Miami (of Ohio) University Professor Megan Gerhardt argued for this in a recent opinion piece for NBC News. I made a similar argument in a blog post last year. In that post, I pointed out that at least Canadian province protects workers as young as 18 in their age discrimination laws. I also pointed out that since younger workers tend to get hurt more, anti-youth bias is a way to discriminate against injured workers.

I can tell you from first hand experience, that many business types talk about “millennials” or young people in a way that would get them successfully sued even in a jurisdiction like Nebraska, if they spoke like that about a group protected under our civil rights laws.

If Nebraska really wants to keep and attract younger workers, we should amend our age discrimination laws to protect younger workers. While I support expanding our state’s employment laws to protect LGBT Nebraskans, any comparative advantage Nebraska would get in expanding those laws would be lessened if the Supreme Court expands federal civil rights law to outlaw discrimination based on sexual orientation and gender identity. Questioning by Justice Neil Gorsuch at oral argument in October 2019 on the issue has many LGBT rights advocates optimistic that the court will expand Title VII.

By expanding our age discrimination laws to include younger employees, Nebraska would truly be innovative. Nebraska is unique among states in having a one house (unicameral) and non-partisan legislature. This unique legislative body should start passing some more unique 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.

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The hidden legal hazards of icy side streets

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Icy residential streets in Lincoln caused problems last week for commuters and workers alike. (Photo via Google Images and 1011now.com)

I usually flip through the FM dial on my drive into work in the morning. Last Tuesday, I flipped to Lincoln Top 40 mainstay, KFRX, and heard a delivery driver talk about the hazards he encountered on Lincoln’s icy side streets.

Icy side streets, plagued Lincoln from Air Park to Vintage Heights until last Wednesday. But this hazard can create other kinds of hazards for workers who are forced to navigate slick side streets.

While icy residential streets may seem like a preventable hazard, the law gives cities like Lincoln little incentive to clear side streets.

Hidden hazards of slick streets for delivery drivers

When the roads are bad and weather conditions are cold, most people don’t like leaving the house. With the advent of online shopping and food delivery apps, consumers can order food, shop online, and stay inside.

But someone needs to deliver what is ordered online. Those delivery drivers who bring those goods are at an increased risk of injury and property damage due to icy side streets.

Assuming a delivery driver is an employee, injuries from icy roads incurred in the course and scope of employment should be covered by workers’ compensation.

But many delivery drivers are classified as independent contractors. Most if not all, delivery people, should be employees for the sake of workers’ compensation. But workers don’t always know their rights and often intimidated by employers. As a result, misclassified delivery drivers may end being stuck with the costs of their own work injury.

Third party claims for icy driveways and sidewalks, but not icy streets

If the injury is the fault of someone else, an independent contractor can bring a negligence claim. Even a worker covered by workers’ compensation claim can bring a so-called third-party claim if another party besides them or their employer is at fault for their injury.

But not all negligence related to icy conditions is legally actionable. Yes, a delivery driver can sue a homeowner who doesn’t remove snow for negligence. But thanks to sovereign immunity, it’s difficult if not almost impossible to sue a city for not clearing icy side streets.

Kings don’t need to plow their subjects side streets

Sovereign immunity is a legal fiction borrowed from English law that you can’t sue the king for his wrongs. The Declaration of Independence, George Washington, the Battle of Yorktown and all that other good stuff aside, American governments decided to adopt this British doctrine. (After all, it’s good to be king)

In Nebraska, the Political Subdivisions Tort Claims Act (PSTCA) dictates how and for what conduct political subdivisions can be sued. Political subdivisions, like cities, can’t be sued for decisions made by policy makers. These functions are called discretionary functions. Lincoln Transportation and Utilities Director Tom Casady, a former Lincoln police chief and longtime city hall fixture, used exactly that language in explaining (or excusing) why the City of Lincoln waited until Wednesday to plow side streets.

In addition, just for belt and suspenders to use a legal term, political subdivisions can’t be sued about snow and ice removals on public roads.

Strong-mayor systems and sovereign immunity

Lincoln (and Omaha) are governed under so-called strong mayor systems which means appointed officials within the executive branch are given broad leeway to make policy decisions. This probably gives Lincoln officials another layer of legal protection against litigation over poor street conditions.

Solutions for slick side streets?

A combination of warmer weather, more snow and probably some public outcry lead Lincoln to plow side streets. A more long-term solution for slick side streets in Lincoln could lie with the City Council voting more money for snow and ice removal. The Legislature could also modify the PSTCA to allow cities to be sued over snow removal. Either scenario seems unlikely at present.

Ultimately residents could band together to clear side streets on their own through homeowners and neighborhood associations. I don’t like that option in the long run or big picture because it would tend to favor wealthier neighborhoods and would undermine confidence in government in general and city government in particular.

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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Why you need an M.D. to prove your work. comp, case, but your employer can slide with a P.A?

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Can a P.A. or nurse practitioner send you back to work?

Nebraska has strict rules about what kind of expert reports can be used in workers’ compensation cases. Often times these strict rules can make it harder for injured workers to collect benefits.

But workers’ compensation insurers and claims administrators play fast and loose with those rules when it suits them. I saw that double-standard in action recently.

In this scenario a medical doctor had taken an individual off work. But a day later, the workers’ compensation adjuster calls the clinic stating the employer has work light work available. Based on the hearsay assurance from an adjuster, a physician’s assistant (P.A.) signs a note returning the injured worker to work

Now if an injured worker went to court and their only medical evidence came from a P.A., that case would likely get dismissed. P.A’s aren’t so-called Rule 10 experts so, their opinions don’t have any legal weight unless they are signed by a doctor.

But when a workers’ compensation insurer wants to avoid paying temporary benefits for a lost time injury, a P.A’s report without a doctor’s signature is just fine.

So, yes a  P.A. or nurse practitioner can send you back to work. An injured worker who doesn’t go back to work after getting a return-to-work note signed only be such a provider risk getting fired. Because of the at-will employment doctrine, the judges who often decide wrongful termination cases on summary judgment aren’t likely going to split legal hairs in favor an injured worker who disregard a return-to-work note signed by a P.A.

But workers can take some steps to protect themselves from unfair treatment from a medical clinic and or workers’ compensation insurer.

Pick your doctor

Occupational medicine clinics or so-called “workers comp. doctors” tend to let insurance companies and nurse case managers more or less draft their medical records. Employers like to route their employees to these clinics. Employees have a right to see their own doctor, but employers often try to cajole and threaten workers to seek treatment at occupational medicine clinics.

Have your own doctor

Doctors are a lot less likely to let a workers’ compensation insurer call the shots in the treatment for an injured worker if they have a relationship with the patient. In short, if you have insurance get a family doctor. It’s very possible your health insurance plan covers a free annual physical. But many workers’ don’t have a regular doctor and insurers take advantage of this fact in a workers’ compensation case.

Talk your union or to an attorney

Workers can also talk to their union if they think their insurer or medical provider is being unfair about their work injury. Though not everyone is represented by a union, you can also contact a workers’ compensation attorney with those concerns.

Often an attorney can’t force an insurer to pay workers’ compensation benefits instantly. Insurers can often delay payment of workers’ compensation benefits without legal penalty.  But if an employer is relying on the opinion of a P.A. or nurse practitioner to deny workers’ compensation benefits, a decent attorney can force an employer to pay penalties and attorney fees to the employee if they go to court.

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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Neb. Ct of Appeals tightens notice requirements in workers’ compensation cases

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The Nebraska Court of Appeals held that waiting 38 days to report a work injury was enough delay in reporting to dismiss a workers’ compensation claim. Though what constitutes timely notice is a case by case determination, the Bauer v. Genesis Health Care case is troubling for workers for many reasons.

  1. Fear of retaliation not an excuse for not reporting injury – In the Bauer case the employee was worried about his job security and testified this one reason he delayed reporting his work injury. The suspicions about termination weren’t unfounded as the employee as put on leave 10 days after his injury. The Nebraska Court of Appeals disregarded this argument and found the plaintiff would have still been able to report his injury.
  2. Change in personal plans can trigger duty to report work injury – The law requires that an employee report an injury as soon as practicable. “As soon as practicable” can vary by the circumstances. The key fact is that the employee knows something could be wrong because of a work injury. In this case the fact the employee cancelled a personal trip a week after the work injury was one fact that persuaded the court the that plaintiff did not report his injury as soon as practicable.
  3. Stricter reporting standards for medical personnel – The court thought it was relevant that the injured worker was a physical therapy assistant was relevant to their conclusion that the employee did not report their injury as soon as practicable. Their theory was that professional knowledge should have lead him to conclude he needed treatment and that the injury should be reported. I wouldn’t be surprised to see insurers and their attorneys try to broaden this argument to all types of medical personnel.
  4. Change in work duties can trigger duty to report – The Bauer case was unusual in that since he was a manager he could place himself on light duty without asking permission. Usually asking for light duty would be enough notice for an employee to meet the notice requirement. But since Bauer didn’t ask, he didn’t put his employer on notice about his injury. Employees who work with co-workers to change job duties to accommodate a work injury may be vulnerable to having their workers’ compensation cases dismissed for lack of notice, if they don’t report a work injury to a supervisor soon after their duties change.

Other takeaways from Bauer

  1. Referral to specialist probably triggers a duty to report — Bauer cited to Williamson v. Werner, where the court held that an employee should have reported their injury to their employer after they reported it to their doctor. That didn’t happen in Bauer as the employee denied he was hurt at work at his first two medical visits. The court thought it was relevant that at the first visit after the work injury that he was referred for an MRI and to a specialist, yet did not report his injury to his employer.
  2. Appearances matter – Bauer had some other bad facts working against him: 1) He didn’t report his work injury until after he had been placed on leave and 2) He twice denied that he was hurt at work to providers. The court stated an employee who provides proper notice of an injury is one that is acting in good faith or honestly. Changes in stories about how an accident happened or irregularities in reporting don’t create an impression of good faith even if they can be explained. But if fear of termination is the explanation of why an employee doesn’t report a work injury, the Bauer decision indicates Nebraska courts won’t consider that factor.
  3. How the fear of retaliation harms workers’ compensation and retaliation claims – The Bauer case represents a common situation where an employee doesn’t turn in a work injury over fear of retaliation. Workers’ compensation retaliation is unlawful, but it is difficult for an injured worker to claim retaliation if they don’t report their work injury. So fear of retaliation can undermine both a workers’ compensation claim and a retaliation claim.
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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Perks may not count as wages under federal law, but count as wages under Nebraska workers compensation law

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The United States Department of Labor announced it will change their Fair Labor Standards Act (FLSA) regulations to exclude certain types of bonuses and employee perks from the wage rate used to calculate overtime payments.

So whether you believe this is another gut punch for wage earners or a grant of freedom to business to offer perks to their employees, keep this in mind about the new rule:

First rules from an executive agency don’t have the full force of law. Administrative regulations are subject to court review. On the bright side for employee advocates, the Supreme Court is giving less deference to those regulations. But on the “dark side”, if you believe that a lot of Supreme Court cases are outcome driven, then it’s likely that ultimately the Supreme Court will uphold the new rules based on their policy preferences that favor business over labor.

Secondly, assuming the DOL rule is upheld by federal courts, state wage and hour laws may have a broader definition of what constitutes wages.  For example, the Nebraska Wage Payment and Collection Act includes fringe benefits that are not included under the FLSA as wages.

Finally, the DOL rule will have no bearing on how state workers’ compensation courts define wages.  Wages determine disability rates for work injuries. Nebraska has a simple and relatively employee-friendly rule for when perks constitute wages: if an employer reimburses and employee for an expense, it is not considered wages. If the perk constitutes an economic gain, then it is wages.

There are three conditions to when non-wage payments can count as wages under the Nebraska workers compensation act. The first is that the perk or benefit has to be agreed upon in advance. Occasional gifts from an employer to employee probably don’t count.

Secondly case law indicates that the benefit needs to flow directly to the employee. For example, a pension benefit paid by the employer to the employee’s union does not count as wages. Does the same logic apply to health insurance premiums paid to an insurer? Does the same logic apply to payments made by an employer self-insured for health insurance? Does the same logic apply to an employer-match to a defined contribution retirement plan such as a 401k?

Finally, the payment of perk or benefit may not be counted as wages even if it meets the first two conditions if a court determines that it represents a windfall to the employee or distorts their earnings. This is a case by case decision. In my view any concerns about “windfalls” need to be counter-balanced with arguments about how Nebraska law is designed to underpay injured employees in many circumstances.

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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