Category Archives: Nebraska

Nebraska women account for majority of work injuries reported in state

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Leaning in is harder after a work injury.

2017 marked a dubious milestone for women’s equality in Nebraska as women accounted for at least 52 percent of the 37,391 injuries reported by employers to the Nebraska Workers Compensation Court through the First Report of Injury form according to the annual report published by the court.

This figure should be taken with a few grains of salt. 2017 could just be an outlier.  The percentage of First Reports of Injury filed on behalf of women in proportion to total injuries has steadily increased since 2007, but 2017 represented an unprecedented increase in the number of women employees who had First Reports filed on their behalf. The decrease in the number of men who had employers file First Reports on their behalf was nearly as unprecedented.

Court officials also state the numbers could be skewed by the fact that gender is not a mandatory reporting item and that reported injury numbers for a particular year tend to vary from year to year because of late reporting and other factors.

There are other reasons that first report of injuries aren’t a completely reliable measure of the number of actual injuries. A report doesn’t mean that an employee was injured. Not all employers report injuries to the court either. Even if an employee was injured and an employer files a report with the court, that doesn’t mean the injury caused any substantial harm to the employee. In 2017, only 1053 petitions or lawsuits were filed in the Nebraska Workers’ Compensation Court.  Roughly another 700 claims were formally settled without litigation.

Women accounted for 3 of 41 workplace deaths reported to the court in 2017, so men still comprise a large majority of the most serious workers compensation claims.

But the numbers quantify a truth about workers’ compensation and the workforce in general. Women’s participation in the workforce is increasing while men’s participation is decreasing.  Workers’ compensation is still often thought of as “workman’s compensation.” Images of workers’ compensation often include men in hardhats. Men in blue collar jobs like construction and truck driving do get hurt on the job. But women also work in traditionally male jobs like construction and truck driving. Injuries are also common in more gender-neutral sectors like retail, food service and manufacturing as well as in traditionally female jobs like nursing.

Future reports by the Nebraska Workers’ Compensation Court may show the injury numbers from 2017 to inaccurate or an outlier, but women will continue to suffer a substantial number of workplace injuries. 

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 gender equality, Nebraska, women, Workers Compensation and tagged , , , .

EPA, USDA rule change proposals could impact workplace safety

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Nebraska Governor Pete Ricketts (left) with former EPA Administrator Scott Pruitt (center) at a meeting in Lincoln last month

Regular readers of this blog know that workplace safety is regulated by the state and federal governments  But even within the federal government, agencies besides OSHA regulate workplace safety. The United States Department of Agriculture (USDA) and Environmental Protection Agency (EPA) have proposed rule and procedure changes that could have an impact on workplace safety.

The USDA has proposed relaxing rules about line speeds in pork plants. Employee advocates have opposed the change because of the well-known link between line speed and musculo-skeletal injuries. In a relatively rare bit of good news, under public pressure the USDA rejected proposed rule changes that would have speed up lines in poultry plants. Public pressure for workers can be effective even in the Trump administration.

The EPA has proposed delaying implementation of two Obama era-rules regarding the prevention of chemical plant explosions  and rules on training workers who are exposed to agricultural chemicals. (5)

The rules concerning exposure to farm chemicals are particularly concerning from a workplace safety perspective. Chemical exposure injuries can take years to manifest and that delayed manifestation can make it more difficult for employees to collect workers’ compensation benefits.

The delays in implementation of the chemical plant and chemical handling training rules have both been subject to court challenges. If the USDA approved an increase in line speed for pork plants, that change would likely be challenged in court as well. Though the Supreme Court is viewed as friendly to business, the court is open to arguments that the actions of administrative agencies can violate the constitutionally-mandated separation of powers between the executive and legislative branch.  In other words court challenges to changes in USDA and EPA rules could succeed. 

The chemical safety rules are also an example of how delay of a rule or implementation of a rule can effectively kill a rule.  EPA Administrator Scott Pruitt has been the target of well-deserved criticism of his administration of the agency. But, as pointed out by Mike Elk of Payday Report, the Obama administration slow-walked some chemical safety rules which them vulnerable to repeal and delay by the Trump administration.

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 EPA, Nebraska, OSHA, USDA, Workers Compensation and tagged , , , , , , .

What is a Functional Capacity Evaluation and what does it mean for a workers’ compensation claim?

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A functional capacity evaluation, or FCE for short, is a test that is usually conducted by a physical therapist that tests your physical abilities. They are common in workers’ compensation claims that involve surgeries or extended courses of treatment. So why are injured workers asked to perform functional capacity evaluations:

Injured worker is done treating and medically stable: Usually a doctor will order a functional capacity when the injured worker is medically stable. Sometimes the term “maximum medical improvement” or MMI is used in conjunction with an order for an FCE. MMI is as much a legal determination as it a medical determination. But when an injured worker is at the point of an FCE, the insurer likely believes or would like to believe the claim is close to finished.

Determining restrictions for return to work, permanent disability and vocational rehabilitation. FCE results are given almost total deference by workers’ comp bureaucrats like adjusters and case managers. HR managers also rely on them to place injured workers back in employment. But the FCE is only an estimate. By law an employee can testify to the extent of their own restrictions and an employer has some reasonable obligation to work with those restrictions. A Judge can also rely on testimony from a worker about the extent of their own restrictions. The problems is that an employee may have to wait months before they can testify to their own restrictions and go without benefits and pay until then.

Restrictions from an FCE can also be used to determine permanent disability or vocational rehabilitation benefits. This should mean that at some point a vocational rehabilitation counselor should be involved in your case. Even if you have returned to work for the same employer, in many cases a counselor should be still he helping to determine your disability. Also even if you haven’t gone back to work and might have applied for or be receiving social security disability a counselor should be performing a loss of earning power evaluation in many cases. Often times an insurance company will attempt to close a case after an FCE.

Employers/Insurers may be trying to the validity of your work restrictions. FCEs are designed to see if an employee is giving full effort on the test. In many cases an FCE that is set up by employer/insurer harkens back to the old concept of “trial by ordeal” or “trial by battle” where success in a physical feat could prove guilt or innocence. In the case of a workers’ compensation claim success or failure in an FCE can go a long way towards determining the ultimate outcome of a workers’ compensation case.

Regardless of why an injured worker is being sent to an FCE, it is probably good idea for an injured worker to check-in with an experienced workers’ compensation attorney for a free consultation if they are scheduled for an FCE. The attorneys at our firm can help injured employees navigate the trial by battle that an employer-scheduled FCE can be. We can also let you know what to expect after an FCE and help you overcome the consequences of a bad FCE.

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 FCE, Nebraska, Workers Compensation and tagged , , , , .

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

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AWW: One variable in determining what a case is worth

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

How to calculate Average Weekly Wage (AWW)

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

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

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

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in average weekly wage, Nebraska, Workers Compensation and tagged , , , .

Caught in the TTD/PPD squeeze

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Consider these common scenarios after a serious work injury.

An injured employee is done recovering from a surgery but can’t go back to work until they complete a Functional Capacity Evaluation.

An injured employee is done recovering from a spinal fusion surgery and is unable to go back to their old job. Even if on the odd chance they could go back to their old job, they have been off work so long that any job protections available under the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) have long passed.

In both cases an injured worker is likely 1) not getting temporary total disability (TTD) 2) Is not earning wages and 3) Has not started receiving any permanent partial disability (PPD) or permanent total disability (PTD).

Some call it “the gap”, some call it “the squeeze”, but whatever you call it, it’s a painful situation to be in to not have any money coming in after a recovery from an injury.

Workers’ compensation laws in Nebraska are supposed to be interpreted in favor of the employee to effectuate the beneficent purpose of relieving employees of the economic effects of a work injury. How can employers/insurers squeeze injured employees like this?

One answer is that case law may allow this. I am going to cut and paste in the relevant language case law into this blog post in italics. I am going to bold face the language insurers rely on to squeeze injured employees.

Temporary disability ordinarily continues until the claimant is restored so far as the permanent character of his or her injuries will permit. Compensation for temporary disability ceases as soon as the extent of the claimant’s permanent disability is ascertained. In other words, temporary disability should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.

The term “maximum medical improvement,” or MMI, has been used to describe the point of transition from temporary to permanent disability.  Once a worker has reached MMI from a disabling injury and the worker’s permanent disability and concomitant decreased earning capacity have been determined, an award of permanent disability is appropriate.

The argument underlying the squeeze is that TTD ends when a doctor states you have plateaued medically, but you can’t get permanent disability until your disability has been ascertained. This could mean waiting for a permanent impairment rating or it could mean waiting for an FCE, having a doctor endorse the results and then having a vocational counselor determine disability. As Roger Moore at our office pointed out in 2015, the latter process can last months.

I think allowing insurers to exploit the gap between TTD and PPD is an incorrect reading of the law. As I pointed out earlier, it doesn’t effectuate the beneficent purpose of the Nebraska Workers’ Compensation Act. If TTD ends when disability is ascertained, doesn’t disability actually need to be ascertained through assigning either permanent impairment or permanent restrictions and/or a determination of loss of earning power before TTD payments end? Finally, if MMI signals the transition between temporary and permanent disability benefits, isn’t MMI merely the beginning of the end of temporary benefits rather than the end of temporary benefits? Doesn’t the term “transition” account for some time period when disability is being ascertained?

The temporary/permanent squeeze is an issue of great interest to me. While I think the squeeze is a misreading of the law, I am not certain a trial judge or appellate court would see things my way. The issue may have to be resolved in the Legislature, but the issue is one that should be addressed in litigation. I am one attorney who is willing to litigate the issue on behalf of an injured employee.

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 , , , , , , , .

Denied workers’ compensation and health insurance for a work injury? You might have a counter

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Ohio State lines up to run a QB counter against Nebraska

My colleagues Paul McAndrew from Iowa and Bernard Nomberg from Alabama have blogged about the tragic but common situation of an employee who puts a work injury on private health insurance only to have health insurance deny payment because they discover the injury is work-related.

It is another example of injured workers getting squeezed. But in the right circumstances an injured worker can squeeze back— a counter-squeeze if you will.

In Nebraska health insurance benefits are considered wages. Nebraska allows employees to receive attorney fees when they sue for unpaid wages under what is called the Nebraska Wage Payment and Collection Act.  So an employer who is denying medical benefits under workers’ compensation, should not be able to deny payment of those bills under private health insurance.

Nebraska also prohibits employers from retaliating against employees for claiming workers’ compensation benefits. Retaliation is an adverse action related to the terms and conditions of employment. Denying payment of wages, in the form of health insurance, because the employee has filed a workers’ compensation claim should be retaliation.

So employers denying workers’ compensation and health insurance benefits can find themselves facing a wage and hour and retaliation case.  Of course, these types of cases are a lot more complicated than described in the last two paragraphs.

In order for the counter-squeeze to work, it is best to have an employer who is at a minimum self-insured for the purposes of health insurance and ideally self-insured for health insurance and workers’ compensation. Tyson, Crete Carrier and Werner Enterprises are large Nebraska employers who fit into the latter category. Self-insurance is important because it allows the employee to link the decision to deny benefits to the employer. In theory you can still make a counter-squeeze work when outside insurance companies are involved, but that turns the case into a civil conspiracy case that can be more costly and difficult to prove.

Wage and hour cases also require detailed proof of medical bills and existence of a valid contract for payment of benefits. If an employee appears to have misrepresented how an injury happened, an employer may be able to fire an employee regardless of any retaliatory motive on their part. But the employee who at first blush may have “screwed up their case” by paying for their workers’ compensation injury with their private health insurance, may be able to salvage a good outcome in their work injury 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 Nebraska, retaliation, Wage and Hour, Workers Compensation and tagged , , , .

Irregular shifts complicate workers’ compensation claims

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Irregular work hours, driven increasingly by automated scheduling, have lead San Francisco and Seattle to pass municipal ordinances to regulate the practice because irregular schedules make child care, transportation and working multiple jobs increasingly difficult for low wage workers.

Irregular hours also increase the risk of work injury and they can complicate the claims of injured workers.  Here are a few ways irregular working hours can impact a workers’ compensation claim:

Benefit rates

Workers compensation disability benefits are paid based on a workers’ average weekly earnings or their average weekly wage – AWW for short. But when you work 40 hours one week and eight the next, what’s your average work week? Mathematically, in this scenario the average week would be 24 weeks. An insurance company would likely use a simple average.

But under Nebraska law a court is supposed to exclude abnormally low weeks from the calculation of average weekly wage. In other words if the case is pushed into court, a Judge will exclude abnormally low weeks which would lead to a higher benefit rate.

Many employers also pay shift differential where night and weekend shifts get a higher hourly wage. Effective hourly wages can vary from week to week for employees who work irregular shifts that include night and weekend shifts.

Nebraska excludes overtime premium in general from AWW, but shift differential still counts. Sometimes insurance companies will exclude shift differentials from their calculations of average weekly wage. This is particularly true when insurers are calculating permanent disability benefits.

It is also common for workers who work irregular shifts to work less than 40 hours a week. For the sake of permanent disability benefits, Nebraska assumes a minimum of a 40-hour work week . Insurers will often not follow this rule. Irregular shift workers are not the only workers who are subjected to this practice, but when you combine exclusions of shift differential along with not using a 40-hour week, irregular shift workers can get substantially underpaid when it comes to workers compensation.

Our firm, like most other firms, represents injured workers on a contingent fee basis. The problem with that arrangement is that while an under payment of benefits may be a meaningful amount of money to an injured worker, it may not be enough for an attorney to justify taking on an underpayment claim on a contingent fee basis. Most state and federal wage and hour laws allow for fee awards that can be many times the unpaid wages. The reason for attorney fee awards in this case is the important public purpose of these laws.

Workers compensation has the same general purpose of as wage and hour laws, but in Nebraska it is difficult to get attorney fees in a disputed workers compensation case because an award of penalties requries a lack of a reasonable controversy. Conventional wisdom is that employees must show a lack of reasonable controversy to win attorney fees. However, some case law seems to distinguish the standard for winning a penalty versus winning an attorney fee.

Medical appointments

Irregular shifts also make it difficult to schedule medical appointments. This is particularly true of specialists who would be treating a more serious work injury. Missing appointments can be a red flag for judges, doctors and insurers if not explained. A good attorney can help an injured worker explain how an irregular work schedule prevented them or interfere with the. from attending medical appointments.

 

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 , , , , , .