Category Archives: Safety violations

Fault Doesn’t Matter in Workers’ Compensation, Except When It Matters

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fingerpointingWorkers’ compensation law is founded on a compromise where employees give up the right to sue their employers for negligence in order to receive relatively certain benefits. What plaintiff’s lawyers like me don’t often say is that workers can generally collect benefits if they share some – or even all of the blame – for a work injury.

But the idea of fault has not been entirely erased from workers’ compensation law. Our colleagues at The Jernigan Law Firm in North Carolina recently discussed in a blog post how employer violations of safety rules could lead to increases in benefits, while employee violation of safety laws could lead to decreases in benefits.

Nebraska does not increase or decrease benefits based on safety-rule violations like North Carolina, but Nebraska does allow employers to avoid paying benefits if they can prove a worker’s willful negligence or intoxication was the cause of the work injury. This is a difficult burden for an employer to meet, but employees can still lose cases based upon willful negligence.

If an employer is going to claim a worker was willfully negligent because of a safety violation, a court will consider five factors as to whether an employee was willfully negligent. These factors are

  1. whether the employer had a reasonable rule designed to protect the safety and health of the employee
  2. whether the employee was on notice of the rule
  3. whether the employee understood the danger involved by violating the rule
  4. whether the rule was kept alive by bona fide enforcement and
  5. whether the employee had an excuse for the rule violation.

Whether an employee willfully violated a safety rule is a question of fact that depends on the circumstances and the credibility of the parties testifying in a case.

Nebraska law holds that ordinary negligence by a worker is not a bar to benefits. But an employer can delay benefits under the argument that but for the employee’s negligence, the employee’s injury could have been accommodated. That is an open question under Nebraska law. But if there is no question that an employee cannot work, and the worker is fired for negligence in connection with a work injury, the employer should still have to pay benefits.

Intoxication is often grouped with willful negligence under Nebraska law. It is very difficult for an employer to deny benefits based on intoxication causing the work accident. Another issue related to intoxication is when an employee tests positive for drugs after a work accident even if there is no evidence of intoxication at the time of the injury. A positive drug test will not bar an employee from receiving workers’ compensation benefits in Nebraska, but it could delay lost time or temporary disability benefits if an employer argues that temporary restrictions could be accommodated but for the employee’s termination for cause.

If an employee is not at fault for an injury, there may be other ways for an employee to be compensated. If an injury is caused by the negligence of a third party, the employee can sue that third party. If an employer retaliates against an employee for reporting an unsafe working condition that causes an injury, then the worker could pursue a retaliation case. Employees should also be skeptical if they are wrongfully blamed for a work accident, as this could be a form of retaliation. Another possible form of retaliation is when an employee is fired for having a work injury as a probationary employee or having too many injuries, regardless of fault.

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 Safety Rules, Safety violations, Workers' Compensation, Workplace Injury and tagged , , , , .

Packing Plants Are Modern-Day ‘Jungle’

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crete-nebraska-meat-packingBeef and chicken packing plants remain “brutal” workplaces, according to a recent Government Accountability Office (GAO) study of the industry. More than 100 years ago, Sinclair Lewis, in “The Jungle,” wrote of brutal work conditions and treatment of Eastern European immigrants. Today the brutality continues, but the immigrants are from Latin America and, increasingly, Africa. The meat industry recruits them. The pay sucks, the conditions are uncomfortable, and the injuries pile on. Wages are frequently below $15 an hour.

Fifteen years ago, Eric Schlosser wrote “Fast Food Nation: The Dark Side of the All-American Meal,” which was considered a modern “Jungle.” He wrote of fast line speed in the modern packing industry and pointed out how it devastated modern workers. The book was a best-seller and made it to the big screen. It was a noble effort to get changes that protected packing-plant workers. Sadly, the bulk of legal reforms since the book have benefited employers. They attack workers every year in every state legislature. Sadly, the workers who bring us the food we enjoy just keep getting ignored.

It seems the more things change, the more they stay the same for this group of hardworking people.

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 carpal tunnel, Death, Nebraska, Preventing Injury, Safety violations, Work Injury, Worker safety, Workers' Compensation, Workplace Injury and tagged , , .

Holdrege, Nebraska, BD Plant Cited by OSHA Again

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Becton, Dickinson and was recently fined by OSHA for workplace hazards leading to partial amputations of workers’ fingers.

“Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.”

This paragraph from a recent news release gives an overview of OSHA’s role. In Nebraska, that role comes into focus when investigators look for safety violations, often after a workplace incident that causes injury, as was the case at Becton, Dickinson and Co. in Holdrege in 2015.

Earlier this month, the news release at the link describes how BD was cited for machine hazards in both April and September of 2015. However, in October, in two separate incidents, two different workers “suffered partial amputations of their index fingers” at the Holdrege manufacturing plant.

“The agency has proposed penalties of $112,700,” after finding one repeat and 12 serious safety violations when the amputations were investigated. Best wishes are being sent to the two workers whose lives were altered after their on-the-job injuries.

In this case, it is obvious that the workers’ injuries were related to these specific workplace incidents, because their amputations resulted in an OSHA investigation of the business. But sometimes there are questions when it comes to workers’ compensation in Nebraska. If a business or its insurance company questions or denies a workers’ compensation claim, then it’s time to get help from an experienced workers’ compensation lawyer. Our attorneys are licensed in both Nebraska and Iowa and have decades of experience helping injured workers in situations like the one above, so please contact us if you or a loved one have been hurt on the job.    

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 OSHA, Penalties, Safety violations, workers' law and tagged , , .

Brain Injury Association of Nebraska Advocates, Educates through Upcoming Conference

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BIANE_LogoBrain injury is caused by trauma, and it causes lifelong problems to which victims and their loved ones must adapt.

Our firm and our senior member, Rod Rehm, has represented victims of traumatic brain injury (TBI) since the early ’80s. Obtaining recognized evidence concerning most TBIs has been made much easier by associations such as the Brain Injury Association of Nebraska (BIA-NE).

This group of victims and their families have worked tirelessly to inform and educate the public and our lawmakers about TBI. BIA-NE has been a strong and effective advocate for victims and their families. There are a lot of really interesting and helpful resources on the website. In addition, the group hosts events that offer information and support, including an upcoming conference in Kearney from March 31 through April 1. The registration deadline is Friday, March 25, so please register for the conference through this link.

Organizers suggest the following people should consider attending this conference, according to the website:

  • “People with Brain Injuries
  • Family Members/Caregivers
  • Health Care Professionals (See For Professionals)
  • State Agency Personnel
  • Educators who work with brain injury or special needs children.
  • Law Enforcement Personnel
  • Anyone interested in issues and trends in brain injury”

In addition to the upcoming conference, BIA-NE also holds events that focus on supporting veterans and their caregivers.

TBI victims now face more accepting judges, juries and insurance companies as they seek proper treatment and compensation thanks to this inspiring advocacy.

Rehm, Bennett and Moore is proud that Rod Rehm has been designated as a Recognized Brain Injury Attorney by the Brain Injury Association of Nebraska.

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 Health, mental health, Nebraska, Safety violations, Workplace Injury, Workplace Safety and tagged , , , .

Rise of Online Shopping Bodes for More Dangerous Holiday Jobs

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X2_warehouseThe business press has trumpeted the fact that online sales outpaced in-store sales over the post-Thanksgiving weekend. A less-reported fact is that more temporary holiday jobs have shifted from in-store retail sales to more warehousing and transportation jobs that are more dangerous. This is especially true in the wintertime, when delivery drivers in many parts of the country are exposed to hazards from slippery surfaces and also to cold weather. 

Adding to the risk of transportation jobs is the fact that many transportation companies attempt to define their drivers as independent contractors, which means drivers would bear the cost of work injuries. Major holiday employer FedEx recently had to pay a $228 million settlement for misclassifying their delivery drivers as independent contractors. Similar arguments have been made against Uber, who is now attempting to compete with FedEx in the delivery business.

The mere fact that you signed an agreement where you agreed to be an independent contractor doesn’t necessarily mean that you are an independent contractor, but it could affect your ability to collect some employment benefits, like workers’ compensation benefits. If you are hurt as an independent contractor, you should contact an experienced workers’ compensation lawyer in your state, as laws are state specific. If you believe you are not being paid for breaks, overtime or even being paid the minimum wage as an independent contractor, then contact an experienced employment attorney as there are both federal and state laws that protect employees who are misclassified as independent contractors.

Employee misclassification adds another layer of risk for employees who hold second jobs over the holidays or any other time of the year. True independent contractors are not eligible for workers’ compensation, but many, if not most, temporary holiday jobs would not qualify for independent-contractor status. Workers’ compensation was never designed to compensate people for pain and suffering, but in the case of those injured on lower-paid holiday or second jobs, workers’ compensation benefits may not even remotely pay you for how an injury affects your ability to earn a living. Be sure to weigh the risks of taking a holiday job or any second job.

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, Independent Contractor, Misclassification, Safety violations, Work Injury, workplace accidents, Workplace Injury, Workplace Safety and tagged , , , .

The Right to a Safe Workplace

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Workplace SafetyUnder federal law, every employee has the right to a safe workplace. If you believe your workplace is dangerous and changes in safety policy are ignored, you can request an inspection from OSHA (Occupational Safety and Health Administration).

Workers’ compensation, which is regulated on a state-by-state level, covers medical bills, lost wages, disability and vocational rehabilitation services for employees injured on the job. If you have any questions regarding these benefits, please contact an experienced lawyer in your area.

If you believe you work in an unsafe work area, here are some tips to be aware of to make sure your workplace is as safe as possible, and you protect yourself from significant injury:

  1.  Know the hazards in your workplace.
  2. While in a seated position, keep your shoulders in line with your hips. Use good form when lifting.
  3. Injuries occur when workers get tired. Take breaks when you’re tired.
  4. Do not skip safety procedures just because it makes the job easier or quicker. Using dangerous machinery is the one of the leading causes of work injuries.
  5. Be aware of where emergency shutoff switches are located.
  6. Report unsafe work areas.
  7. Wear proper safety equipment.

If you are injured due to an unsafe workplace, and you are unsure of the benefits that you are entitled to, contact an experienced attorney in your area.

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 Safety, Safety Rules, Safety violations, Uncategorized, Worker safety, workplace accidents, Workplace Injury, Workplace Safety and tagged , , .

Warehouse Workers Are At Risk By Company Safety Violations

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Today’s post comes from guest author Jon Gelman, LLC – Attorney at Law. Although the scene for this blog post comes from a business in New Jersey, the scenario occurs all too often in businesses across the nation. Fortunately, an injury or death was not the catalyst for officials to be notified of the hazards. But it’s frustrating that the right for workers to be safe is often trumped by what employers see as the need for speed or profit. And I’m not convinced that OSHA’s fines deter companies from taking safety shortcuts frequently. So please work to be safe at work and at play.

Warehouse worker suffer unique risks associated with their employment. Many warehouse workers suffer injuries at work that lead to seriously disabling Worker’s Compensation claims. U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has taken a major step in enforcing regulations in Jersey City,New Jersey, in an effort to make the work environment safer.

OSHA has cited Continental Terminals Inc. for nine serious and two willful safety violations at the company’s Jersey City facility. Inspectors were notified of alleged hazards at the facility while they were inspecting another Continental facility in Kearny. Proposed penalties total $130,900.>

The willful violations involve not protecting workers by allowing them to ride on the forks of forklifts, where they were exposed to falls of 10 feet, and permitting them to work on elevated platforms devoid of guardrails. A willful violation is one committed with intentional knowledge or voluntary disregard for the law’s requirements, or with plain indifference to worker safety and health. The citations carry $98,000 in penalties. The serious violations include having exit doors that were sealed shut, allowing damaged powered industrial trucks to be operated, stacking materials insecurely, not having a hazard communication program, using damaged electrical cords and not labeling electrical panels. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The citations carry $32,900 in penalties.

“Because fall hazards are among the leading cause of death among workers, it is vital that employers provide workers with proper fall protection,” said Kris Hoffman, director of OSHA’s Parsippany Area Office. “Employers are responsible for ensuring safe and healthful workplaces, and will be held legally accountable when they fail to do so.”

The citations can be viewed at http://www.osha.gov/ooc/citations/Continental_408905_1026_12.pdf.*

Continental Terminals Inc. is a coffee and cocoa warehouse business that employs 10 workers at its Jersey City site; it was recently fined $162,400 by OSHA for safety violations at its Kearny site. The company has 15 business days from receipt of the citations to comply, request an informal conference with the OSHA area director, or contest the findings before the independent Occupational Safety and Health Review Commission.In April, Secretary of Labor Hilda L. Solis announced a campaign to provide employers and workers with lifesaving information and educational materials about working safely from ladders, scaffolds and roofs in an effort to prevent deadly falls in the construction industry. In 2010, more than 10,000 construction workers were injured as a result of falling while working from heights, and more than 250 workers were killed. OSHA’s fall prevention campaign was developed in partnership with the National Institute of Occupational Safety and Health and NIOSH’s National Occupational Research Agenda program. More information on fall protection standards is available in English and Spanish at http://www.osha.gov/stopfalls.

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 Safety violations and tagged , , , , .