I had an awful realization summarizing medical bills in preparation for a workers’ compensation trial; injured workers who aren’t exposed to COVID-19 are in for a nasty surprise due to the resurgent pandemic: having to pay deductible in denied or disputes workers’ compensation.
Of course, if workers’ compensation cases are accepted a worker doesn’t have to worry about medical expenses. However, many workers compensation case are disputed. In disputed case, many workers fortunate enough to still have health insurance pay for surgeries with private health insurance.
But because of delays in non-urgent surgeries, more injured workers paying for surgeries in disputed workers compensation cases with private insurance will need to pay deductibles for procedures delayed into 2021.
So what options do workers have in this situation?
If true, managers betting on employee COVID-19 exposure would likely be evidence of gross negligence. So besides another example of man’s inhumanity to man, what does the COVID-19 betting pool tell us about workers’ compensation and workplace safety?
Good alternatives to the exclusive remedy of workers’ compensation
Iowa is fairly unique in allowing for negligence suits for work injuries. In Nebraska, and most other states, workers compensation is the only way that employees can be compensated for a work injury. Lawyers and judges use the term the terms “exclusive remedy rule” or just “exclusive remedy” to describe workers’ compensation laws The so-called grand bargain of workers’ compensation is that workers don’t need to prove negligence by their employer to be compensated for a work injury. In exchange they receive limited benefits.
However, Iowa’s allowance of tort cases, with higher potential payouts in cases of work injuries and deaths from COVID seems like the best way for seriously injured workers and their families to hold employers accountable. And bluntly, it’s not that great of an option.
Some readers may ask, isn’t OSHA, Occupational Safety and Health Administration, supposed to regulate workplace safety? If workplaces were safe there wouldn’t be a need for lawsuits. But OSHA sidelined itself early in pandemic
OSHA continues to refuse to specific rules about workplace safety and COVID. Sure, once the Biden administration finally takes over and gets going, OSHA might issue some standards. But even in a Democratic administration, the Department of Agriculture, who also regulates meatpacking plant may seek to weaken workplace safety measures implemented by the Department of Labor. For example, while the Department of Labor did some innovative enforcement of meat processing plants in the Obama administration, the Department of Agriculture allowed some packers to speed up processing lines. Faster lines correlate with more injuries.
Why local media is matters in covering workplace safety, part 2
The story about the COVID pool at Tyson was broke by a local journalism outlet in Iowa. This is the second straight week, I’m writing about a workers’ compensation issue first reported on by local reporters. Local reporters are essential in covering workers’ compensation because workers’ compensation is a state law. Also, many unsafe workplaces exist well outside journalist-rich cities like New York City and Washington DC. It’s important to have good reporters in places like Iowa and Nebraska to tell the stories of workers there.
A story in the Seattle Times about injury rates at Amazon fulfillment centers shows how a state workers’ compensation agency and enterprising local reporters can focus attention on workers compensation.
First of all, for now, First Reports of Injury, are public records. Any interested party can look at those reports. But of course those reports don’t always correlate with an injury and they are based on what an employer reports.
But if a tree falls in a forest and no one is there to hear it, does it really make a sound? I bring up this old question to discuss the gradual disappearance of local journalism. If news happens, but there are no reporters to cover it does news exist?. Lee Enterprises has made Nebraska a one newspaper state. Lee has nearly halved the number of reporters at Omaha World-Herald in the last two years. Any long time readers of the Lincoln Journal-Star or Omaha World-Herald know from first-hand experience how the news content in those papers has thinned out over the years.
Nothing under Nebraska law prohibits companies from assigning their injured workers to work for non-profits. In fact, a small industry has cropped up that matches injured workers with non-profits. Of course, that industry and apologists for workers’ compensation insurance industry call this practice a win-win for everyone. I think the benefits of forced volunteer or voluntold work don’t hold up under closer examination. But workers faced with a voluntold assignment face at least two problems:
Some so-called light duty jobs aren’t always light. Some injured workers get temporarily assigned to work at Goodwill Stores. However most retail work requires a 50-pound lifting ability along with extended standing. Bell ringing usually requires long-term standing. And while insurance side thought leaders like to use terms like “resilience”, they have cushy indoor jobs. Trying standing outside on a cold December day in Nebraska for eight hours being forced to volunteer. This is never a pleasant prospect and it’s certainly more risky as the COVID pandemic extends into month eight in the United States.
Win-Win or Win-Lose?
The insurance industry touts the well-being benefits of volunteer to work to injured workers. But on closer look these benefits, nebulous as they are, are mostly backed by anecdotal evidence. But even if you take the benefits of corporate volunteering at face value, a lot of those benefits come through so-called VTO or volunteer time off programs. In those programs, companies have employees take time off for community projects or pay employees to volunteer for organizations they care about. That’s a whole other situation from telling an injured worker to go out in the cold and raining bells for the Salvation Army 40 hours a week or they will get fired while they still recovering from an injury.
But while then benefits of voluntold jobs are dubious at best to workers, businesses who voluntold their workers get a nice some nice PR.
Why can’t workers just collect TTD and volunteer on their own?
Why can’t workers just volunteer for an organization they like and collect TTD? Many workers are rightly concerned that employers are surveilling them. But even if a worker isn’t under surveillance, employers and their insurance companies fundamentally like to control their employees — including and especially their injured workers. Employers want to control which doctors you see and what kind of care you get from your doctor through the use of nurse case managers.
But even if an employee manages to get proper medical care for a work injury, some employers aren’t content to let their workers stay home for a few months while they get healed. Employment at-will gives employers all sorts of leverage over their employees. Voluntold programs are just one example of how this power dynamic plays out.
Things work differently when a collective bargaining agreement is in place. Unions sometimes negotiate their own return to work programs. But I’ve seen insurance companies and their vendors ignore these agreements and try to force union members into voluntold jobs.
Walking off-the-job in mass or mass call-ins without union approval or without a union period is sometimes known as a “wildcat strike.” But while the LEA was correct in stating a coordinated sick out by teachers is illegal in Nebraska, most private sector employees have the right to walk off the job due to safety conditions under certain circumstances.
Some workers are still fortunate enough to enjoy union representation. If you are one of those workers, join your union and get involved in your union. Unions make the workplace more democratic and allow for employee input, but unions work best when workers get involved. One of my pet peeves is listening to clients or potential clients telling me “the union doesn’t do anything.” Some unions are better than others, but even a weak union gives most employees better benefits and more job protections than they would be entitled to otherwise as an at-will employee.
Public sector labor law reform in Nebraska?
Public sector employees cannot strike in Nebraska. Nebraska law is clear on that issue unlike more ambiguous laws in West Virginia, Oklahoma and Arizona that had teacher strikes in 2018. Nebraska law also holds teachers and other employees can’t engage in work slow downs or sickouts. In fact it is a crime to even advocate or advise public sector employees on workplace strikes and slowdowns and to support strike funds. While Nebraska laws on public sector strikes may be vulnerable to some First Amendment challenges, public sector strikes and work slowdowns remain a very risky proposition for participants.
Nebraska is also one of the few states that hasn’t adopted charter schools which are opposed by teachers’ unions. I’m not sure that the Nebraska State Education Association, the union representing teachers in Nebraska, would want to risk alienating support for public schools with proposals that could seem radical to many Nebraskans, including teachers.
Many white-collar employees exercise at the beginning of the day before going to work. But many blue-collar workers are required by their employers to exercise or stretch at the beginning of their shifts.
In my view, required workplace stretching or exercises creates many issues in workers’ compensation and employment law.
Workplace stretching supporters also support employers using early intervention to address musculoskeletal injuries. But many employers don’t follow the advice offered on workplace wellness blogs. I have many clients, particularly in the livestock and meatpacking industries, that complain about soreness from overuse injuries. The response is often less than supportive from management. They are told that pain is just part of the job.
Workplace exercise and stretching and the ADA
Workplace exercise programs raise an immediate concern for workers with physical disabilities. Sometimes disabled workers are unable to complete stretches or exercises because of their disability. A refusal of to do these stretches could be construed as a refusal of work duties, so employees may feel pressured to complete the exercises and risk injury.
Sometimes employees can’t afford to go the doctor or can’t easily access medical care. I think an employee can still ask for an accommodation based off old restrictions or even on their own. But to be blunt, employers don’t always take self-reported restrictions seriously. That is often the case with courts as well if those self-reported restrictions lack basis in the medical records.
But litigation is time consuming and expensive. So an employee who is forced to do stretches that aggravate an old injury or health condition should try to work with a doctor and employer, if possible, to either get excused from the exercises or to get the exercises modified.
The role of the Governor in deciding maximum rates is a good way to talk about the role played by the Executive Branch in Nebraska workers compensation law.
Nebraska’s maximum rate for workers’ compensation benefits will increase for 2021. The court has not announced by how much the amount will increase, but the fact that neither the State of Nebraska or the Nebraska Workers’ Compensation Court have announced there will be a hearing on the matter, means the rate will increase.
The process in which the maximum rate increases is a good way to discuss how the Executive Branch, can affect workers’ compensation in Nebraska. For now, that influence is limited, but as discussed below the influence may increase with a looming United State Supreme Court decision.
But to start, let’s talk about how the Governor can impact workers’ compensation in Nebraska and what the decision to increase Nebraska maximum benefit might mean in the near term.
The Governor and maximum benefit increases.
Most years, the maximum benefit increases for injured workers in Nebraska. Here is how the process works. Under Neb. Rev. Stat. 48-121.02 the Nebraska Department of Labor calculates the state average weekly wage which calculates the number of employees covered by the Nebraska Employment Security Act (unemployment) divided by their total wages. The Department of Labor then gives the number to Nebraska Workers’ Compensation Court. By law, this happens on October 1st.
The state executive branch and Nebraska workers’ compensation
Nebraska adjudicates workers’ compensation cases within our judicial branch unlike Iowa and other states who adjudicate workers’ compensation cases in the executive branch. 48-121.01 and 48-121.02 are one of the few direct mentions of the Executive branch agencies in the Nebraska Workers’ Compensation Act. The attorney general’s office has the ability to prosecute some fraud and employer misconduct and also is involved in vocational rehabilitation benefits.
Arguably the biggest influence the executive branch has over the Nebraska Workers Compensation Court is that the Governor appoints judges. But the ability of the Governor to appoint judges is reined in by a bi-partisan Judicial Nominating Commission. The Commission forwards the names of applicants for judgeships to Governor. The Commission serves as the equivalent of a judicial human resources department that screens qualified applicants for the Governor.
And unlike the federal judiciary, state court judges in Nebraska are subject to judicial retention elections. This system of judicial nominating committees and judicial retention elections is known as the Missouri Plan. However an upcoming United States Supreme Court case could change how state’s like Nebraska select judges.
Trouble on the horizon for Judicial nominating commissions?
I saw something new in the world of workers’ compensation last month; a “work restriction agreement” between an employee and a doctor. The agreement raised my eyebrows when I first saw it and it raised my eyebrows again when I dug it up to write this post.
The more I thought about this agreement, the more I saw the handiwork of a nurse case manager. Nurse case managers have all sorts of advantages over injured in workers in a workers’ compensation claim. In my mind, this agreement really seemed like running up the proverbial score.
So why did this agreement rub me the wrong way?
Trust and stigma in workers’ compensation
When I saw the agreement, I thought about the agreements that doctors often make patients sign in order to receive opioid pain medication. To some extent those agreements are well-intentioned because they can inform patients about how to take medication properly. But the agreements have been criticized for undermining the doctor-patient relationship and stigmatizing users of prescription drugs as potential addicts. Injured workers are equated with drug addicts.
Like drug addiction, issues about doctor-patient trust and stigma are major issues for injured workers. Many injured workers refuse to claim workers compensation benefits out of fear as being stigmatized as freeloaders looking to “milk the system”. But even if workers overcome that stigma and claim benefits, most workers are surprised to find how little privacy they have regarding their health history once they claim benefits.
The role of the nurse case manager
One of the most visible examples of the relative lack of privacy in workers’ compensation claims is the nurse case manager. A nurse case manager is usually a nurse hired on behalf of the workers compensation insurer, but it can be someone employed directly by your employer. This nurse case manager will suddenly pop up in the examination room when you visit your doctor or a doctor about a work injury.
We tell our clients to tell that nurse case manager to scram (politely of course). That might be less of an option if the nurse case manager works at your company and is more or less in management. An employee may feel pressured to allow a company nurse case manager in an exam room out of fear of losing their job or being disciplined. Nebraska law makes it illegal for employers to retaliate against employees for claiming workers’ compensation. I’ve never seen a case related to an employee telling an in-house nurse case manager to leave an examination room, but it could be an interesting case.
But even if you can get the nurse case manager out of the exam room, you can’t stop a nurse case manager from talking with your doctor privately. So, what is it that the doctor and the nurse case manager talk about? Oftentimes it’s whether an employee can return to work. That’s where these “work restriction agreements” come into play.
How the work restriction agreement works and can work
I think nurse case managers are driving the bus on “work restriction agreements.” Some doctors like nurse case managers. I think part of reason some doctors like nurse case managers is oftentimes a nurse case manager will have access to written job descriptions that help doctors to tailor work restrictions.
The work restriction agreement I saw incorporated a written job description. The agreement contained a provision that the workers work restrictions were just exactly as described by the doctors note. This would limit the employee’s ability to testify to the extent of their own restrictions at trial.
In addition, the agreement contained a provision that the employee would refuse work that exceeded her restrictions. Interestingly enough, the agreement created no requirement that the employer not ask or force the employee to exceed their stated work restrictions. Overall the document created obligations for the employee, but none for the employer. (If this sounds like collusion, it is and you can read more about why this collusion is usually permitted here.)
Given the one-sided and legalistic nature of the “work restriction agreement”, I am not surprised it showed up in cross-examination like questioning from an employer’s lawyer in a workers’ compensation deposition. The nurse case manager was essentially helping to create what amounts to attorney work-product to be used in a workers’ compensation case. (It could also be used in an employment law claim as well.) But while a “work restriction agreement” is a fairly blatant effort to create evidence, nurse case managers have more subtle tactics.
Of course, insurers have more blunt tactics to influence medical evidence – they pay the bill. I remember sending a questionnaire out to a doctor in a case because their dictation wasn’t enough to help prove my client’s case. I was bluntly told by clinic staff that since “workers compensation already paid the bill” that they saw no reason why they needed to fill out additional paperwork. Paying the bills gives insurers a lot of influence and make their nurse case managers seem a lot more persuasive than they would be otherwise.
Many nurse case managers also have long-standing relationships with doctors which leads doctors to trust nurse case managers. It seems nurse case managers aren’t happy with their advantages and are seeking to further their advantage over injured workers through the use of forms like “work restriction agreements” that further stigmatize injured workers.