Category Archives: Nebraska

The why and how of injured workers’ can protect themselves from debt collectors in Nebraska

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Two important and helpful changes to the law for injured workers and their family will take effect on August 31, 2019. One change could protect injured workers’ form debt collectors. The other change will make it easier for dependents of foreign workers who were killed at work.

Today I will write about the collections bill and on Monday I will post about the foreign dependents law.

The law amends Neb. Rev. Stat. 48-1,108 by prohibiting a collection agency from attempting to collect a debt if there is a case pending in the Workers’ Compensation Court and the debt is alleged to be subject to payment under a work comp injury. Nebraska has gained national infamy for aggressive debt collection practices, so this legislation provides much needed relief for injured workers.

What this means is that lawyers can assist in getting collection agencies to halt collection of medical bills that are related to the work accident and injuries. This is extra important for injured workers because often they may not be able to return to work, and if their work comp claim has been denied, it often isn’t even possible to pay the bills that the employer should have to pay in the first place.

How does the bill work? Once an injured worker is billed for treatment, he/she should contact his lawyer if that bill has not been paid. Then, the lawyer representing the injured worker must provide the collection agency with notice of the pending workers’ compensation claim. The notice must be provided, in writing, to the provider or collection agency. The initial notice must contain the provider’s name, the injured worker’s date of the injury, a description of the injury and the filing date/case number of the pending case in the Workers’ Compensation Court.

In that same notice, or within another thirty days, notice should also be given that identifies the specific debt that is related to the workers’ compensation claim. In other words, the collection agency must be able to know what bills are potentially related to the work comp claim that way they can still continue to pursue collection on any unrelated debts.

The notice must be made by personal delivery, first class mail, or by another method otherwise agreed to. What “any other method” means is that likely the parties will agree that notice via email will be enough for purposes of the statute. Once notice is received, any collection lawsuits will be stayed (halted) until the workers’ compensation claim has been finalized.

The law requires that a workers’ compensation case actually be filed in the Nebraska Workers’ Compensation Court. While an injured worker can proceed pro se or without a lawyer, the employer will likely have an attorney, so injured workers should at least consult with an attorney,

The collections bill and foreign dependents bill both passed as part of LB 418 that passed the Legislature 35-0.  We were able to get these laws passed due, in part, to our firm’s close work with the Nebraska Association of Trial Attorneys (NATA), and are proud that we are able to help workers in the Legislature.

On that note, these bills will be further discussed and analyzed in a seminar that I am chairing for the Nebraska Association of Trial Attorneys on October 9, 2019 as part of the annual meeting of the Nebraska State Bar Association.

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 Nebraska, Workers Compensation and tagged .

Can a hate crime be a workers’ comp. claim?

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Why would a blog entitled “Nebraska Workers’ Compensation Watch” post about a federal criminal case in Virginia?

What drew my attention to the 4th Circuit’s decision in U.S. v Hill was that involved two things relevant to workers’ compensation: 1) a workplace assault and 2) a discussion of the interstate commerce clause. I will write about the workers’ compensation issues arising from hate crimes on the job today and post about the constitutional law issues on Monday.

Factual background

Hill assaulted a co-worker in at an Amazon warehouse in Virginia because he perceived him to be gay. Hill was charged under federal hate crime laws. He was ultimately convicted by a jury, but his conviction was overturned by the trial judge who found federal hate crimes statute violated the interstate commerce clause. The 4th Circuit Court of Appeals reversed the trial court’s decision. (You can read a better summary of the Hill case in a blog post written by New York civil rights attorney Eric Lesh. I wouldn’t have known about the case without seeing his post on Twitter.)

Can a hate crime on the job be a workers’ compensation case?

The answer to the question depends on your jurisdiction. Not every injury to an employee during work hours or on company premises is necessarily covered by workers’ compensation. The injury has to arise from an employment risk. In Nebraska, an injury incurred from a workplace assault is compensable if it is at least facilitated by work, but it is not compensable if it is related solely to personal reasons.

I believe a hate crime at work, could be a close legal case. Arguably a bias crime would be motivated by personal reasons not related to work. On the flip side, a hate crime arguably isn’t motivated by anything thing else than a status they could share with millions of people. A racist, bigot or homophobe just wants to target someone belonging to a group they dislike.  if work facilitates that targeting, then the hate crime should arguably be covered under the Nebraska Workers’ Compensation Act.

The practical problem with a legal case for an injured workers is that it gives a workers’ compensaiton insurer a reason to deny a claim. This means that a hate crime victim assauted at work would be stuck paying for medical expenses out of pocket depedning on what type of health insurance they have or whether they even have health insurance.

Fortunately in the Hill case, the injured employee didn’t appear to miss much work. The dark cloud to that silver lining is that if the employee was stuck with a medical bill an attorney may be reluctant to take their csse if there isn’t a chance of monetary recovery in the way of temporary or permanent disability.

Physical assaults can also lead to mental trauma. Most states, including Nebraska, allow so-called physical-mental claims when a mental injury stems from a physical injury. In practice, mental injuries can be difficult to quantify if an injured employee has returned back to work. The difficulty of valuing mental injuries could discourage attorney involvment in a workers’ compensaiton case involving a hate crime.

I believe states should pass laws creating a presumption of compensability if an employee is injured on the job as part of a hate crime. Such a presumption would make it less likely that hate crime victims would be stuck with medical bills as a result of a violent hate crime in the workplace. A presumption would also encougage employers to try to prevent violent hate crimes in the workplace. In that regard workers’ compensation laws would work hand-in-glove with occupational safety laws like OSHA and state and federal civil rights laws.

A hate crime in the workplace could also be an employment discrimination case in certain circumstances. This is important because often times when an employee is the victim of an assault from on the job they could be forced to chose between a workers’ compensation case and a tort case under the so-called exclusive remedy of workers’ compensation. But an employee could recover in workers’ compensation without effecting their right to collect on a workplace harassment case. Any criminal sanction against the assailant would also have no effect on a workers’ compensation claim.

Federal hate crime laws only apply in states without hate crime statutes or hate crime statutes that address a bias crime. There was federal jurisdiction in Virginia because, Virginia’s hate crime legislation does not cover sexual orientation. Nebraska law does cover sexual orientation, so an on the job hate crime motivated by sexual orientation would not be a federal criminal case.

Hate crimes laws are like workers’ compensation laws in that they tend to be state specific. The reason workers’ compensation laws are state specific is related to how the Supreme Court interpreted the interstate commerce clause when workers’ compensation laws were enacted. I will discuss this issue more in depth in my next post. 

 

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 interstate commerce, Nebraska, Workers Compensation and tagged , , .

Can I use the decision in my unemployment appeal in my wrongful termination case?

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Can I use the decision in my unemployment appeal in my wrongful termination case?

Attorney Nate Ring answered this question for his state on his blog, The Nevada Labor Law Blog.

In Nevada, the answer is a firm no by statute.  Nebraska law is a bit more permissive about the use of unemployment decisions in other cases. But in my experience, judges will rarely admit the decisions into evidence or give the decision much weight for the purpose of summary judgment.

I will explain why Nebraska judges usually don’t rely on unemployment decision in other cases. But even if an unemployment decision can’t be used in a wrongful termination case, an unemployment appeal can be useful in investigating a wrongful termination case.

Nebraska judges tend not to give much weight to unemployment decisions in related cases for reasons of procedure and substance. Like Nate Ring wrote, unemployment appeals have rules of evidence that allow in more evidence but allow for far less investigation than in civil court. The differences in evidentiary and procedural rules can lead to an unemployment judge deciding a case about the same termination on a different set of facts.

Secondly, in an unemployment appeal the employer has the burden of proof to show the employee committed misconduct in connection with their employment. In a wrongful termination case, the employee has the burden to show their termination was motivated by  an unlawful reason. In short, it is easier for an employee to win an unemployment appeal. As a result, judges are very reluctant to let an unemployment decision into the records.

But even though an employee generally can’t use an unemployment appeal decision in a wrongful termination case, an unemployment appeal can be helpful in prosecuting a wrongful termination case.

Unemployment appeals are useful in investigating the facts of a termination, For most employees, non-union and private sector employees, it is difficult to obtain an employment file. In a Nebraska unemployment appeal, an employee can subpoena records relevant to their termination.

The employee, or their attorney, also has the opportunity to question employer witnesses who likely would have been involved in the decision to terminate the employee. In Nebraska this questioning is done under oath.

To sum up, an unemployment hearing can be a way for employee to find out additional facts about their termination and get admissions and impeachment evidence in a wrongful termination case..

Sometimes an unemployment appeal can be a chance for an employer to show they can fully justify their termination. If an employer can provide credible documentation of repeated misconduct or performance problems, an employer is likely to be able to defeat an unemployment claim.

This documentation of misconduct or performance problems is often part of so-called progressive discipline. While progressive discipline isn’t required to fire an employee and failure to use progressive discipline generally isn’t evidence of discrimination, progressive discipline is often necessary in an unemployment hearing. If employers don’t follow progressive discipline, they risk having their unemployment taxes increased.

I’ve written previously about the vast powers that employers have to fire employees in the United States. Employers can fire employees at any time for reason. This is known as ‘at-will employment.” The law around unemployment insurance can serve to modify employment at-will by giving a tax penalty to employers who don’t follow progressive discipline in firing employees. So while unemloyment insurnace is thought of a social safety net program, it effectively functions as a civil rights law as it discourages employers from firing employees without some due process.

 

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, Unemployment and tagged , .

Still getting medical bills after going to court and winning a workers’ compensation case?

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Getting a collection notice for a bill that was ordered to be paid by a judge is like a bad horror movie sequel

How can an injured worker go to trial, have the court order payment of disputed medical bills, have their employer pay the bills they were ordered to pay, but still be receiving medical bills? It’s like a horror movie or franchise where you think the villain is dead but keeps coming back to life.

Here’s the why and how it can happen in Nebraska.

Neb. Rev. Stat. 48-120(8) allows the court to order that an employer can pay bills through the so-called fee schedule or that employers reimburse other payors. Those payors are either the injured worker or a health insurer that paid a bill that was part of the workers’ compensation case.

Recently I encountered a situation where the court ordered the employer to reimburse a health insurer who had paid some bills in a disputed workers’ compensation case. The employer paid the health insurer, but then the health insurer decided that since the expense was related to a work injury that they could reverse the payment they made to the provider originally.

So, the medical provider attempts to collect the balance from my client. My client was confused and upset because they were getting collection notices for a case where the court had ordered that medical bill to be paid.

What is the solution for the client in this situation? In Nebraska the most leverage a plaintiff would have would be the penalty and fee provisions under Neb. Rev. Stat. 48-125. Once the employee gets the bill, thy should send to their attorney who will put the employer on notice that the medical bill remains unpaid after it was awarded. That puts the onus on the employer to pay within 30 days or be subject to an award of attorney fees under 48-125.

Medical providers and third-party payors don’t have standing to litigate in the Nebraska Workers’ Compensation Court, so I question whether the Nebraska Workers’ Compensation Court would have jurisdiction over them or what relief it could order against them even if it did.

The employee could have a case directly against their health insurer for breach of contract. Since health insurance payments are wages under the Nebraska Wage Payment and Collection Act, there could be a cause of action under that law as well. But in a case of relatively small-time graft by a health insurer, it might not be worth an attorney’s time or even filing fees to bring a case.

The best prevention for this situation would be to have the court order that bills be paid directly to the provider under the fee schedule. But there isn’t any Nebraska case law about when to pay bills under the fee schedule or when a payor should be reimbursed. I’ve had employers balk at being asked to pay at the fee schedule rate rather than to reimburse a third-party payor. In cases involving Medicare and Medicaid the reimbursement rate is generally much less than the workers’ compensation fee schedule rate, so paying at the fee schedule means the employer pays out more.

Injured workers’ may also want the faster reimbursement afforded to them when the court orders an employer to pay them back for any out of pocket medical expenses. If bills are paid under the fee schedule, then medical providers have to reimburse other payors. This can delay repayment and unscrupulous providers may try to pocket payments or double bill workers compensation and health insurance and/or the injured worker.

In the last legislative session, Nebraska passed bills that going forward will limit the ability to collect medical bills that are related to a workers’ compensation claim. However those protections only extend throhg final adjudication of a case. In a case where a health insurer reversed payment to a provider when they had been reimbursed through workers’ compensation after an awarded case, a provider would be free to collect an unpaid balance.

 

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 Nebraska, Workers Compensation and tagged , .

Why disability means different things in workers’ compensation and social security

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Workers’ compensation benefits are described as temporary and permanent disability benefits in Nebraska. When many people hear the word disability they think or say “ I don’t want/need permanent disability, I can work.”

I understand the sentiment, but I think non-lawyers confuse Social Security Disability Insurance (SSDI) benefits with workers’ compensation disability benefits.

Broadly defined, disability means how a medical condition or injury impacts someone’s ability to earn wages. There are many differences between the workers’ compensation disability and social security disability, but so-called “non-scheduled” workers’ compensation benefits and SSDI benefits are both paid based on how an injury impacts your ability to earn a living. In both types of claims judges will rely on vocational counselors as experts in determining the extent of a person’s disability

But a recent United States Supreme Court decision, Biestek v. Berryhill, focused on two key differences between workers’ compensation and social security disability when it comes to evaluating the testimony of a vocational counselor — the standard used to determine disability and the procedures you can use to prove disability. The narrow issue in Biestek was the availability of jobs to the claimant within his work restrictions. I hinted at some of those differences in a post I wrote about Biestek, that you can read here. But here is some further explanation about the differences between disability for the sake of workers’ compensation and social security.

In short, it is easier to discover information about the availability of work in a Nebraska workers’ compensation claim than it is an SSDI claim. Injured workers’ also have more ways to investigate the availability of jobs in a Nebraska workers’ compensation claim than they do in a SSDI claim.

SSDI v. Workers’ Compensation: National vs. Local labor market

In order to obtain SSDI, there must be a finding that a claimant can not find work in the national economy. From reading the Biestek case, it’s fairly clear that the availability of jobs within the national economy is somewhat of a mystery based on spotty public information.

In contrast, in a non-scheduled injury in Nebraska, disability is determined first by the hub community, usually where the employee lives, and the available jobs within that community. One of the main points of contention in this type of litigation is what constitutes a reasonable commute. The questions of the cost of the commute in relation to expected wages and the injured workers’ ability to tolerate the commute are usually the most pertinent issues.

Attorneys for injured workers generally try to limit the size of a labor market for their clients as appropriate. The smaller the labor market, in general the easier it is to see the actual availability of jobs from public sources like online ads and even information from government agencies such as the Nebraska Department of Labor. This information makes it easier to check whether a vocational counselor is basing their opinion on accurate information.

Additionally, an attorney for an injured worker can even often get information about jobs available within the plant or worksite where they were hurt. Often times publicly available sources will only have one listing for large employers. Particularly in small towns in Nebraska, a large meatpacker might be the largest employer in town.  These employers will sometimes attempt to argue that the availability of jobs within their plaint is irrelevant in a workers’ compensation case because they can accommodate most any restrictions. At least during the investigation of a case, judges generally don’t find that argument persuasive. As a result an injured worker can find out what jobs they could do within a large manufacturing or food processing plant

SSDI v. Workers’ Compensation: Differences in procedure. Part of the reason that it is easier to probe the basis for an opinion by a vocational counselor in a Nebraska workers’ compensation court than in an SSDI hearing is that rules of civil procedure apply in the Nebraska Workers’ Compensation Court (See NWCC Rule 4). The rules of civil procedure allow a party to do investigation or discovery into the basis for an expert opinion. In Biestek, the Supreme Court basically stated that the decision would have turned out differently if the rules of civil procedure applied in social security proceedings.

In Biestek, the vocational counselor refused to turn over relevant information based on concerns about confidentiality and the Supreme Court held that was permissible. Because the rules of civil procedure apply in the Nebraska Workers’ Compensation Court, an employee is generally free to obtain information that is relevant or could be relevant to their case. (See Rule 6-326(a)(1))

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 Nebraska, social security, Workers' Compensation and tagged , , .

Legislation seeks to prevent heat-related deaths on the job

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Reps. Raul Grivjala (D.-Ariz.) and Judy Chu (D.-Cal) introduced federal legislation that would mandate OSHA  standards for workers exposed to high heat as well as mandating paid cooling breaks, access to water and training to recognize heat stroke.

The Asuncion Valdiva Heat Illness and Fatality Prevention Act is named after a California worker who died after picking grapes for ten hours in 105-degree heat and modeled after a California law passed by Rep. Chu when she served in the California legislature.

Fortunately, deaths and injuries from heat exposure are covered by workers’ compensation in Nebraska. This can even be true if heat causes a heart attack where there is a heightened standard for causation. But compensation in workers’ compensation cases is limited and no amount of money can replace the life of a family member.

Nebraska recently experienced nasty heat wave that is still effecting most of the country. While agricultural production in Nebraska is more capital-intensive than in states like Arizona and California, many workers are still vulnerable to heat. The first to come to my mind would be residential construction workers building new houses in shade less subdivisions.

Climate change is expected to raise average summer temperatures in Lincoln, Nebraska by 5.5 degrees Fahrenheit by 2050 and by 11 degrees by 2100. Heat will be an even larger occupational risk than it is today.

Chicago experienced a heat wave in 1995 that killed 749 people. This little remembered natural disaster could be a precursor for more heat-related health problems and deaths in the future and the need to take precautions. The Chicago heat wave of 1995 shows how northern and cold weather areas could be particularly vulnerable to risks from climate-change induced heat waves. Federal legislation about heat standards on the job would be one precaution.

I would urge everyone to contact their elected representatives to support the Asucnion Valdiva Act. Nebraska’ legislators lo like to tout the value of manual labor as a way for young people to build character. But building character shouldn’t mean sacrifcing safety. I also believe that Nebraska should adopt a state law version of the Asuncion Valdiva act.

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 Nebraska, Workers Compensation and tagged , .

Guest Post: Is Hands-Free Really Safer?

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On Monday I wrote about the legal problems associated with the hazards presented by GPS for professional drivers. Huntsville, Alabama attonrey Jeff Blackwell has agreed to let me re-publish his blog explaing why in-car devices like GPS are hazardous.

The Alabama Legislature has been debating bills that would prohibit the use of handheld devices like cellphones while driving. Last year, Georgia passed a similar hands-free law. Is hands-free safer? Will a hands-free law reduce needless car accidents and injuries in Alabama?

A National Safety Council public opinion poll indicates 80% of drivers believe hands-free devices are safer. Yet, safety experts remain doubtful. The Senior Director of the Transportation Initiative at the National Safety Council had this to say on the topic:

While many drivers honestly believe they are making the safe choice by using a hands-free device, it’s just not true.

The problem is the brain does not truly multi-task. Just like you can’t read a book and talk on the phone, you can’t safely operate a vehicle and talk on the phone.

A journalist asked the hosts of MythBusters the question. What did they do? They tested the issue with a driving simulator at Stanford University. The simulation involved 30 people driving in a busy, virtual neighborhood while talking on a cellphone. Half the drivers used handheld phones. Half talked hands-free. The results were amazingly similar. Only one driver passed the test in each group. Almost identical numbers crashed or drove the wrong way. The MythBusters conclusion:

It is no safer to use a hands-free device while driving than it is to use a handset.

I have mixed feelings on the issue. Do I believe hands-free is safer? Yes and no. Driver distractions are MANUAL, VISUAL and COGNITIVE. What are some manual distractions? Eating or drinking while driving. Reaching for items in the car. What are some visual distractions? Looking for items in the car. Watching an electronic device. Reading billboards (with their ridiculous clown lawyer ads). What are some cognitive distractions? Talking to passengers. Daydreaming. Feeling exhausted or fatigued. What makes handheld cellphones so dangerous? They involve ALL three types of distraction at the same time.

With a hand-free device, you reduce the manual and visual distractions while driving. I think that does increase safety. The problem is that many drivers don’t fully consider cognitive distractions. While most people realize that looking or reaching while driving diverts focus and attention, they tend to discount cognitive issues. Instead, they (wrongly) think they can multi-task. Many people are biased about their ability to multi-task. They wrongly believe they can safely concentrate on driving while mentally performing other tasks.

I think the Alabama Legislature should pass a hands-free law. It’s a start. If handheld devices are less accessible while driving, maybe some of the most dangerous activities will decrease. Maybe we won’t see reckless drivers surfing the internet with their phones while trying to drive. While the perception of hands-free safety is certainly greater than the reality, we should pass a hand-free law and carefully study accident statistics in the next few years.

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 auto accident, distracted driving, Nebraska, personal injury and tagged , , .

GPS poses safety, legal risks to new professional drivers

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Contrary to conventional wisdom, one study shows the most dangerous distraction for drivers isn’t texting and driving, but the use of GPS navigation systems.

As driving jobs expand with rise of the gig economy and online shopping drivers, especially inexperienced drivers, may be relying on GPS navigation to the detriment of their safety of the job. Navigation devices can be a visual and cognitive distraction. The occupational hazard posed by GPS navigation brings up some important legal issues and hazards for professional drivers.

Employee classification is a major issue. Employees can collect workers’ compensation even if their own negligence caused the accident. In other words, the employee who got in an accident while distracted by their navigation system is still covered by workers’ compensation.

But it you are classified as an independent contractor, you are on your own for medical bills, lost income and permanent disability you are on your own if you are involved in accident where you at fault.

Unsurprisingly, gig economy companies like Uber and Lyft are fighting to classify their drivers as contractors. Gig economy companies are involved in a high-profile legislative fight in California that may have broad implication in other states and even at a federal level.

New employees are more likely to get injured. This is not good news for drivers in the high turnover ride hailing industry. A study of Uber drivers shows that nearly 2/3rds quit after six months and another study shows only 4 percent of drivers stay on for a year. The majority of drivers also drive for less than one year.

Ride hailing drivers may be particularly vulnerable to other distractions. Some ride hailing drivers will operate what amounts to a command center on their dashboard because they drive for multiple apps and monitor price information with separate phones.

Because of all those potential hazards to ride hailing drivers, I don’t think workers’ compensation attorneys can talk enough about misclassification of ride hailing drivers. But even drivers who are employees are vulnerable to risk from GPS caused auto accidents. Workers’ compensation only covers medical expenses and lost income from an injury. Workers’ compensation, at least in Nebraska, would not cover the cost of an auto insurance deductible for a driver who damaged their vehicle in a work injury where the employee was at-fault.

Many workers who do driving or delivery jobs also work at other jobs. Even if an injured driver is covered by workers’ compensation workers’ compensation disability benefits are only based on earnings from that employment.

For example, if an employee gets hurt in Nebraska and can’t work because of an injury on a second job where they made $150 per week, their temporary disability pay is limited to $100 per week even if that injury prevented them from doing another job where they made $600 per week. So even if the employees real loss of wages is $750 per week from an accident, they would be limited to $100 per week on a temporary basis. Nebraska law (Neb. Rev. Stat. 48-121(4)) assumes a 40-hour work week for the purposes of permanent disability, but employees can still be undercompensated for injuries on a second job – particularly if the second job had a relatively low hourly wage.

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 Nebraska, Workers' Compensation and tagged , , .