Category Archives: employment law

Upon further review: 2nd thoughts on the AMA 2nd

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Back in October, I wrote a critical post about the American Medical Association Guide to Causation of Injuries, 2nd edition. (AMA 2nd for short) But as I revised that post to submit as a more formal article, I realized some of my criticisms of the AMA 2nd were misplaced.

I still believe the AMA 2nd will be used by the defense bar to informally heighten causation standards. Other bloggers have made similar observations about the use of the AMA 2nd.

I still believe the AMA 2nd will be used in lobbying efforts by the insurance industry.

But after reviewing the AMA 2nd in more detail, I think the danger of the AMA 2nd is in the misuse rather than the use of the AMA Guides.

I came to my conclusion after reviewing materials written about the AMA 2nd by J. Mark Melhorn, MD who is one of the primary authors of the AMA 2nd.

The AMA 2nd gives doctors guidance on how to determine causation for a work injury. How the AMA 2nd differs from a traditional differential diagnosis is that the Guides ask doctors to consider statistical studies concerning causation – or epidemiology – as to whether a condition is work-related. I think it is important to note that the AMA 2nd still requires a doctor to consider work duties and other factors specific to the injured worker in determining whether an injury is work-related or not. The authors of the AMA 2nd is clear about the limits of epidemiology. The authors of the AMA Causation Guides are also clear that medical causation and legal causation are different concepts.

Because of how the AMA Guides to Permanent Impairment, 6th edition (AMA 6th) for short, have hurt injured workers, I like most plaintiff’s lawyers have a visceral reaction to anything document that includes “AMA Guide” in the title. But if I am faced with a medical report or doctor stating that my client’s work duties could not have caused his or her injuries citing to the AMA 2nd, the AMA 2nd is likely being misinterpreted.

The term “evidence-based medicine” is another trigger for plaintiff’s attorneys. Evidence-based medicine is synonymous with the use of statistical research. While the defense bar seems to have marshalled the mystique of math to their advantage, a lot of time the numbers can work for employees. Plaintiffs can cite to favorable studies linking repetitive or overuse to musulo-skeletal conditions.

Epidemiology can also be helpful to workers in other ways. In cases litigated under the ADA employers will justify discrimination based on disability under the theory that a disability or medical condition can pose a direct threat to the safety or health of others. Epidemiology can help an employee prove their medical condition poses little or no risk to their safety or the safety of others. In my experience, this is particularly true if this research is shared with specialists who have treated the individual in the past.

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 employment law, Nebraska, Workers Compensation and tagged , , .

Something old, something new: The 737 Max and the future of workplace safety

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The aftermath of the Ethiopian Air 737 Max crash that killed 157 people

Even as workplace injuries decline, new threats to workplace safety are emerging. The recent crash of an Ethiopian Air 737 Max highlighted on emerging safety risk.

Safety experts attributed the crash to the 737 Max to using modern software to control machinery that was designed as long as 50 years ago. Experts believe that so-called control software works much better when it is designed together with the machinery it is meant to control.

But purchasing new machinery is expensive for business. (Or it cuts into returns for wealthy investors.) Control software is seen as a cost-saving hack.

In the case of the Ethiopian Air crash 157 crew members and passengers lost their lives. Thankfully not all accidents from using 2019 software to control 1969 machinery will be as fatal as the Ethiopian Air crash. But nonetheless accidents from industrial machinery can be gruesome and disabling even if they don’t make international news.

Obviously injuries caused by this slapdash industrial technology would be covered under workers’ compensation laws. But other laws would certainly come into play as well.

Workers who report problems with unsafe technology can bring whistleblower claims. Nebraska has broad protections for employees who report unsafe working conditions.  A complaint about an unsafe working condition can be a report of a work injury in many circumstances. Employees reporting concerns over the design of technology may also have protections under federal law. The United States Senate has opened up an investigation of the 737 Max based on issues raised by a whistleblower. Complaints about machine design could be covered under the various whislteblower laws administered by the Occupational Safety and Health Administration. Employees bring a claim under the act have an easier evidentiary standard to meet than in other forms of retaliation cases.

Employees injured on the job by defective machinery can also bring a negligence case against the manufacturer of the equipment. This so-called third party case could be worth substantially more than a workers compensation claim. But in a case involving modern software controlling old machinery, there could be a dispute over who was at fault. Producers of older technology may also be able to defend negligence claims based on a statute of repose defense which can limit claims for injuries that have yet to happen.

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 employment law, Nebraska, third party, Whistleblower, Workers Compensation and tagged , .

Four rules of thumb about disability accommodation and public employees

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Public employees protesting in Wisconsin in 2011

A few weeks ago Brody posted about the story of a paramedic who ultimately did receive workers’ compensation benefits for a solely mental injury. I agree with Brody that it’s great that first responders can receive workers’ compensation benefits for mental distress on the job not related to a physical injury.

When I read Brody’s post, it reminded me of few informal rules or principles I’ve learned from helping injured workers with their employment law issues for the last 14 years.

Government employers can be difficult. I have a few theories why. First of all, they can invoke sovereign immunity as a defense to any potential unlawful acts. Secondly most of them are self-insured which means any claim made by an employee comes out of tax funds rather than from an insurance policy. Finally since, government employees are entitled to some procedural due process before a termination, government employers go out of their way to build a case for termination. This case building by management can take a terrible mental toll on employees who are being targeted for termination.

Unions are good: Most union contracts require that an employer just cause for termination. That’s usually true for public sector employees as well. But union representation usually means that an employee can receive a substantively fair process when facing difficulties at work. Union officials often know about past practices and can effectively deal with bad behavior by an employer short of attorney involvement. Union contracts often include arbitration rights to dispute a termination, but those rights are often meaningless without an attorney. Unions often foot the bill for an attorney to represent an employee in arbitration.

Disability accommodation is often a bureaucratic nightmare: Under the ADA, employee and employer and supposed to meet in an informal, interactive process to determine how to accommodate disability. What often times happens is that management decides to second guess doctors’ restrictions or ask for endless clarifications. The process becomes adversarial and driven by paperwork.

Mental disabilities aren’t treated the same as physical disabilities: Mental disabilities can present somewhat of a challenge as they are more difficult to measure than physical disabilities. It’s difficult to manage what can’t be measured, but accommodations for a mental injury can be as simple as accommodations for a physical injury if an employee and employer sit down in good faith.

I also believe that employees who suffer from mood disorders are often considered risks for violence if they are having difficulties in the workplace. Studies show the mentally ill are no more likely to be violent than those without a mental health diagnosis. A mentally ill employee who is struggling with job tasks or getting along with co-workers may be not be a qualified employee with disability, however that does not give employers carte blanche to deem an employee with a mental illness to be a threat for workplace violence.

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 employment law, Nebraska, Workers Compensation and tagged , , .

Settling a workers’ compensation and wrongful termination case at the same time

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Many employers want to settle all employment-related claims when they settle a workers’ compensation case

Clients often ask me, “If I settle my workers’ compensation case, can I still sue my employer for wrongful termination?” My answer is almost always yes. But for one unfortunate employee in Louisiana, it appears settling their workers’ compensation case may have doomed their wrongful termination case.

A federal district court in Louisiana held that a worker who settled their workers’ compensation case with a release that released all claims arising from their work injury was deemed to have settled their wrongful termination case under various civil rights laws.

The Louisiana decision raised the ire of some employee-side attorneys. Workers’ compensation laws and civil rights laws provide different remedies for different harms. A Minnesota court recently used this fundamental tenet of law to hold that a disability discrimination claim under their state’s civil rights laws was not barred by the exclusive remedy provision of their state’s workers’ compensation act.

But as a practical matter, some employers like to settle all claims arising out of the employment relationship when they settle a workers’ compensation case. In these cases there is usually consideration, or seperate amounts, to settle the workers’ compensation claim and the employment law claim. Sometimes this can be advantageous for a client. I am not sure of how the release was structured in the Louisiana case, but here is how I structure so-called global releases. In short, you need two releases: one for the workers’ compensation claim and one for the wrongful termination case.

Settling the workers’ compensation case

I wrote earlier about the so-called exclusive remedy of workers’ compensation. In Nebraska, that exclusive remedy also means the workers’ compensation court has limited jurisdiction. Nebraska courts have stated repeatedly that the Nebraska Workers’ Compensation Court can not adjudicate employment law cases because they are a court of limited jurisdiction. Neb. Rev. Stat. §48-139 gives the court jurisdiction over workers’ compensation settlements. 48-139 also dictates the language of workers’ compensation settlements, states when settlements must be approved by the court and mandates the filing of settlement papers with the court. In short, if the Nebraska Workers’ Compensation Court does not have jurisdiction to hear a wrongful termination or discrimination case, any settlements in that court should not effect any wrongful termination case or discrimination case.

Settling the wrongful termination or discrimination case

A settlement agreement in a wrongful termination case is a different document. Usually there is no requirement that it be filed or approved by a court. These agreements are often synonymous with severance agreements and oftentimes included language required by the Older Workers’ Benefit Protection Act if the employee is over 40 years old.

Settlement agreements in employment cases usually also talk mention tax liability. Tax liability is usually not mentioned in a workers’ compensation settlement as workers’ compensation benefits are almost never taxed. But settlement proceeds in a wrongful termination or discrimination case are usually taxable and those agreements should include some discussion of tax liability.

Sometimes employers will want a resignation as a condition of paying a settlement to an injured employee. If the employee is still working, that provision can be a deal breaker. But for an employee who has been terminated the extra money for a wrongful termination claim can be beneficial. Settling all claims at once may also help an employee minimize taxes by apportioning the majority of the value of the severance or employmennt law settlement into the non-taxable workers’ compensation settlement.

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 employment law, Nebraska, Workers Compensation and tagged , , , , , .

Mold on the job: not just workers’ compensation

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Mold doesn’t have to be this obvious to be harmful in the workplace.

Teaching is not thought of as a hazardous job, but 120 teachers in Stamford, Connecticut have filed workers compensation claims due to mold exposure that effects half of the buildings in their district.

Mold is a relatively common hazard for white collar employees. When mold infests a building, it is common to have many employees affected. Mold is sometimes visible other times it can be hidden in insulation. Mold exposure is typically thought of leading to hayfever like allergic symptoms, but it can also lead to symptoms like chronic fatigue, irritable bowel syndrome and weight gain. About 25 percent of people are especially sensitive to mold and that sensitivity can be tested for by doctors.

In Nebraska, an employee just needs to show that an occupational factor or factors were a contributing factor to the injury. An employee exposed to mold in Nebraska should be able to collect workers’ compensation benefits for mold exposure even if they had pre-existing allergies or mold sensitivity. But other states have more stringent causation standards, so it could be harder to receive workers’ compensation benefits for mold exposure in those states.

The mass mold exposure by teachers in Stamford, Connecticut raises many interesting legal issues outside of workers’ compensation.

Challenges of collective action in the workplace

The first issue is the question of collective action when 120 employees are injured by a common hazard. The teachers are fortunate to be represented by a union. A union can be helpful in accommodating work injuries and helping employees gather information that can prove their workers compensation case. In a case of mold exposure, it is important to gather information about mold levels so doctors have sufficient foundation to relate symptoms to mold exposure. A union is helpful in getting such information.

But public sector unions are under attack by recent and upcoming Supreme Court litigation.  The National Labor Relations Act (NLRA) gives nonunion employees some right to act in a group or collective manner about the terms and conditions of their employment. But that right may have been limited by the Epic case decided by the Supreme Court at the end of the 2018 case.

Fortunately claiming workers compensation is a protected activity in most states. That means employees facing a common cause of injury would be protected from retaliation for pursuing workers compensation claims. Some states, like Nebraska, also have whistleblower statutes that would protect employees from reporting hazardous work conditions.

In cases where many people have suffered a common harm, they can file a collective or class action case. I don’t know if Connecticut allows for such claims in workers compensation. But a collective or class case in workers’ compensation could be a simpler and less epxenseive to handle workers’ compensation cases involving mass mold exposure.

Third party claims

Collective or class litigation is generally allowed in cases of mass negligence. Fault usually doesn’t matter in workers compensation, but if a third party is at fault for a work injury the employee (and in Nebraska the employer as well) can sue that third party. A third-party case usually gives an employer some right of subrogation that allows them to be repaid some of what they paid the employee in workers’ compensation benefits.

In a case of mass mold exposure employees and employers could be looking to sue a landlord or builder for negligent construction or maintenance. But if s third party didn’t cause the injury, employees are stuck with defined workers compensation benefits and employers have no hope of being repaid for workers compensation benefits they paid to employees.

The downside to s third party claim is that they usually require more expense to prove negligence. In my experience handling individual mold exposure workers compensation cases, the value of the claims usually would not justify the expense of third-party litigation. But if enough employees are joined in a case, it would make sense economically to pursue a negligence 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 employment law, Nebraska, third party claims, Workers' Compensation and tagged , , , , , , , .

Workers’ Compensation:  The Man-made Quagmire (Part 2 of 3)

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Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm. Paul has done a good job of describing the difficulties by injured workers.

This is the second part of a three-part series in which I explain why workers should claim their rights under workers’ compensation laws. The first installment explains how employers commonly and purposefully make it difficult for workers to claim comp. This second part explains ways in which workers’ compensation insurance companies (from here on our we’ll call them “insurers”) also throw up barriers to workers getting comp benefits.

It is worth noting that many employers – mostly large corporate employers – file for and obtain a certificate from the Iowa Division of Insurance to “self-insure” for purposes of workers’ compensation. These self-insured employers have offices filled with staff that carry out the same work and serve the same purposes as out-dwelling work comp insurers. They do the same things as out-dwelling insurers to bar coverage, also.  Thus, I will treat them as one entity – “the insurer.”

Our third segment will explain why other benefits and programs don’t come even close to providing what the worker receives in workers’ compensation. It’s unfortunate, but the best thing a worker can do is slog through this quagmire and make good on his or her rights in comp.


Again, researchers determined years ago that many barriers are erected by insurers. The insurers’ barriers don’t stop after the worker applies for comp. In fact, in my experience the insurers deter workers by making obtaining comp benefits so unpleasant and frustrating, that the workers with future injuries will opt to not claim comp, but rather try to make do with other benefits, if possible. The biggest reasons workers give up on their rights in workers’ compensation are due to the insurers’ conscious effort to frustrate, confuse and delay every aspect of the claims process. That, however, is exactly what should not happen in comp. Why do I say that? Because the Iowa Supreme Court has repeatedly said that for decades. According to the Court it’s a basic fact of Iowa worker’s compensation law “that the injured claimant is compensated swiftly, fairly and with the least possible ‘red tape.’” DeShaw v. Energy Mfg. Co., 192 N.W.2d 777, 784 (Iowa 1971)(citing Cross v. Hermanson Bros., 235 Iowa 739, 16 N.W.2d 616, 618 (1944)). Besides being fast in result, the process is supposed to incline in favor of the worker. Again, as stated by the Iowa Supreme Court, “we keep in mind that the primary purpose of chapter 85 [ed. the work comp code chapter] is to benefit the worker and so we interpret this law liberally in favor of the employee. Stone Container Corp. v. Castle, 657 N.W.2d 485, 489 (Iowa 2003).

So what should you do to protect your workers’ compensation rights when the insurer is ignoring them?

Part I: Dealing with the Insurer’s Persuasion Tactics

  1. The Adjuster – The Insurers’ First Fortress in the way of Every WC Claim

    People used to ask why I do not like adjusters. The reason is that very few of them (something less than 5% by my best estimate) have any goal but cutting costs for the insurer, no matter what means are used to do so. In light of that I most commonly file the claim early on so as to deal with the insurers’ lawyers rather than the adjuster. How does the adjuster form a barrier – a tough fort – standing in the way of a legitimate work comp claim?

    1. The Various Types of Obstructive Adjusters
      Adjusters commonly do several things that occur so frequently that I believe that these things are learned and practiced forms of conduct, which are designed to frustrate any injured worker. What things?
      1. The Absent Adjuster – most commonly the adjuster may never answer the phone, instead letting all of your calls go to voice-mail. Then, the adjuster will not return your calls.
      2. The Rude Adjuster – nearly as common is the adjuster who denies a claim without explanation and will be demeaning and condescending in refusing to be willing to explain anything. In a system in which the worker is usually without any way to know things, being put down and denied without explanation is a very effective method of driving the worker out.
      3. The 100% Purposely-Ineffective Adjuster – the adjuster many times will promise action on a benefit and may even set personal deadline to do so. Then, the adjuster fails to get the action and merely extends the time for the deadline, again and again. Again, this is a very effective means to drive a worker from the system because the benefits (both medical and money) are usually promptly needed.
  2. The Adjuster’s Wingman – The “Nurse Case Manager” Commonly the adjuster/insurer will assign a “nurse case manager” (hereinafter “NCM”) to your claim. The NCM is a “confidence person.” She (the NCM is always a female in my experience) will tell the worker and family that she is there to get better and more prompt care. In fact, the NCM almost invariably seeks to interfere with the minimal care that even a company doctor renders. In most cases the NCM will also do anything to persuade that the worker should be returned to work, whether safe or not. The only effective remedy I’ve found for the NCM who acts unreasonably in denying my clients care is to file a complaint with the Iowa Board of Nursing.
  3. Employer’s Choice of Medical – “Paul McAndrew’s best friend” Why is it my best friend? Because if the law allowed Iowa workers the right to choose their own medical care, more than half of the workers who come in and need me would no longer need me. Why say that? Because about 75% of the workers who come to my office do so only because they’ve been delayed, denied, and frustrated in getting timely and proper care, so much by the company doctor (usually in conjunction with the adjuster and NCM) that they can’t get back to work as they must and they come to me to merely get medical care. They don’t even want the benefits much. They want only to get healthy so they can get back to work and earn a living to support their family. How does the adjuster/NCM/company doctor bar proper and timely care? By these means:
    1. The Company “Hack” (General-Practice Doctor)
      There are many company doctors who are well known to the practicing work comp bar as being dedicated to one thing: Maintaining that doctor’s share of the insurers’ referral of injured workers by almost any means. This leads the doctor to be little more than a mouthpiece for the insurer. This takes the form of:
      1. Stating some uncouth reason why the injury did not arise out of and in course of (commonly called “cause” but very different than) work (e. g., the court reporter, Smith).
      2. Minimizing or even ignoring the worker’s injury condition until the worker is discharged to her/his own doctor, or just leaves due to frustration.
      3. Carrying the worker along over months of periodic clinic visits without any real effort to determine a diagnosis and treat that diagnosis.
    2. The Company “Sweetheart” (Specialist Doctor)
      This specialist—-commonly an orthopedic surgeon or neurosurgeon—becomes the insurer’s favorite by always giving a favorable-to-the-insurer opinion. Again, the Sweethearts are well known to lawyers, but not to the worker.

Part II: The Insurers’ Tricks for Wrongfully Manipulating Care

  • Prompt Care/Unreasonable Delay in Providing Care
    This speaks for itself. It’s far and away the most common method of denying care—just delay it long enough and the worker’s life demands will cause the worker to turn elsewhere for care. This is easily overcome with the Alternate Care Procedure, briefly described here.
  • When the Authorized Doctor Recommends Care that the Insurance Company Denies
  • When the Authorized Doctor Refers to another Doctor and the Insurance Company Denies or tries to Refer, instead, to its “Sweetheart”
  • When the Authorized Doctor orders care and, Instead, the Insurance Company tries to “Transfer Care” to a Sweetheart Who Will Likely say what the Insurance Company Wants to Hear
  • When the only Care Offered is not Convenient Care. This is now standardized: if the care offered is more than 50 miles from the worker’s home and the same type of care is offered closer, then the 50+ – care is “inconvenient.” Remember the “convenience” requirement applies only to “care.” Unfortunately, it does not apply to the company’s right to send the worker for a medico-legal, one-time “independent medical examination.”

 


Alternate Care Process

The Iowa Legislature enacted in 1913 the comp’s system’s healthcare provision method. Iowa Code 85.27. 85.27 provides that the employer has the right to make the initial selection of care. In this regard, Iowa is only one of ten out of the fifty states and the United States (under FECA (Federal Employee Comp Act) and the Long Shore Act) that provide the employer with such unfettered power. For years, a worker had to wait months or more than a year to get to the final hearing to challenge the insurance company’s denial of care.

In 1992, however, Commissioner Byron Orton drafted a provision that was accepted by consensus of all interest groups and enacted into law, which create the “alternate care process.” This process allows the worker to obtain prompt relief for the denial of proper care. The process is relatively simple and designed to be carried out by a worker or union representative.

NOTE: While Section 85.27 gives the employer the right to select care, that right is qualified. The care provided must be (1) prompt, (2) reasonably suited to treat the injury and (3) without undue inconvenience to the claimant. Westside Transport v. Cordell, 601 N.W. 2d619, 694 (Iowa 1999). The failure of the employer to provide care meeting any of these three requirements gives the worker the right to bring an alternate-care procedure and have the Division of Workers’ Comp. order proper care be provided.

The Steps for Filing and Prosecuting ON YOUR OWN an Alternate Care Claim

  1. Before filing, the worker must communicate the basis of her/his dissatisfaction with the care (or lack of care) offered by the employer. If you don’t, the filing will be dismissed. Communicate dissatisfaction in writing or the employer will likely deny that there was communication.
  2. File on the form provided by the Commissioner. This form can easily be obtained at http://www.iowaworkforce.org/wc/publications.htm. There is no cost/filing fee. Make sure you send a copy of the form to your employer, also, as explained on the form.
  3. When filling out the form, ensure you state: (A) The specific medical treatment sought; (B) the grounds why what’s offered (if anything) is not proper (for example, “not prompt,” “not convenient,” or “not proper care for the injury condition,” etc.); and (C) that you ask for hearing by telephone.
  4. Alternative medical care proceedings are only prospective in nature. Bills for prior care will need to be adjudicated about a year later in the primary hearing.
  5. The grand majority of alternate care hearings are heard by phone.
  6. Alternate Care Procedures Yield Prompt Results. Why? Because by law the commissioner must both hear the alternate care matter by phone and issue the decision on the matter within ten (10) days of the filing of the alternate care petition.

Please join us next week for Part 3: Why it’s Important to Receive Comp.

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 employment law, Workers' Compensation and tagged , , , , .

Workers’ Compensation: The Man-made Quagmire (Part 1 of 3)

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Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm. in Iowa City. I like that he brings up employer incentives for not filing workers’ compensation claims. That was a favorite tactic of the ghoulish Dan Blankenship, whose callousness towards safety lead to deaths of 29 coal miners in West Virginia in 2010.

I’m starting here a three-part series explaining why workers should claim their rights under workers’ compensation laws.  The three parts are, in summary: 

  1. How the employer makes it tough to claim work comp;
  2. How the insurer makes it tough to claim work comp; and
  3. Summary:  Why it’s Important to You and your Family that you Claim Work Comp when You are Hurt on the Job. 

Below is the first installment.

 


Workers’ compensation [“work comp”] is every workers’ right. Yet, researchers years ago determined that many employers and most work comp insurers try their best to persuade workers to not make claims. That “persuasion” takes many forms. It’s important that workers know that this “persuasion” is calculated and how to deal with it. Why? Because workers’ compensation benefits are your right and those benefits are important to you, your family and the overall safety of your workplace.

Part 1: Dealing with the Employer’s Persuasion Tactics 

  1. Suppressing Reporting of Work Injuries: Pizza-Bingo Party!! — Nancy Lessin (the MA AFL-CIO Health & Safety Coordinator) taught me years ago that giving workers some type of prize for so many hours without a reported injury is NOT based on generosity. No, it’s based on cost cutting. It’s also completely contrary to public policy!

    Work comp is required by law. One of work comp’s basic purposes is to make workplaces safer. How? By making employers pay higher work comp premiums in circumstances in which there are high rates of injuries, thus giving the employer financial incentives to implement safety measures to keep injury rates low, leading to lower premium costs. Some sly employer offer such things as pizza parties, small bonuses, gift-drawings and the like knowing full well that doing so puts pressure on the workers to not report work injuries.

    Why? Because the more a worker cares about her/his brothers and sisters, the more likely the worker will — when hurt at work — do the wrong thing.  What’s the wrong thing? It’s preserving your friends’ pizza party or “prize” by putting the accident as “personal,” and putting the costs on health insurance, LTD and lost sick/vacation time. The problem with this is often not discovered until too late. What do I mean “too late?” I mean when the health insurance company investigates and finds the injury was caused by work and thus denies coverage under the standard health insurance exclusion for work injuries. And when the time missed due to the work injury outstrips the amount of sick and vacation you’ve banked for the last 13 years. Even that does not account for what happens years later.

    First, you work injury may be “the gift that keeps on giving.” It may require 2 or even 3 surgeries, leading to even more medical expenses and time off work. Only work comp pays this.  No LTD or health insurance comes close. Bottom line: Don’t be misled by the “gifts” for no reported work injuries. The only entity getting that “gift” is your employer.

  2. Termination—Yes, we all know the employer who makes up an excuse — ANY excuse — and fires the injured worker within days of the injury.  This is illegal under all public policy, Iowa law (Springer v. Weeks) and U.S. law (the Americans with Disabilities Act).
  3. Return to work at a job that is not within even the company doctor’s work restrictions. Remember — not trying a tendered job — any job — sets up the argument that the worker is “insubordinate,” “refusing work” or “no-call/no-show.” One must try any job, whether the job’s tasks are within restrictions or not. One need not, however, continue to do any tasks that cause worsening of the work-injury condition. If asked to do something outside restrictions set by the doctor:
    1. report that the job’s outside your restrictions;
    2. when told to do the job anyway (which will likely happen), perform the job the best you can and hope for the best; and
    3. if the job does what is feared — worsens your injury condition — go to the company workers’ compensation officer and demand a return to the company doctor immediately, before your injury is permanently worsened.

Stay tuned next week for Part 2: Dealing with the Insurance Company’s Persuasion Tactics.

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.

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