Category Archives: Uncategorized

Why Ketanji Brown Jackson could hear a workers’ compensation case at the beginning of her Supreme Court career

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TLDR: In short, I think the issue of whether requiring insurers/employers to reimburse employees for medical marijuana under state workers compensation laws is pre-empted by federal criminal law is one the Supreme Court will take up. Federal criminal law is a strong federal basis to review a preemption question. I also believe medical marijuana in workers compensation addresses federal criminal law issues in addition to separation of powers issues.  All of these factors distinguish medical marijuana from the issue of air ambulances charges in workers compensation that also involves preemption, but the Supreme Court declined to address in 2021.

District Columbia Circuit Court of Appeals Judge and Supreme Court nominee Ketanji Brown Jackson is going through Senate confirmation hearings this week. But if she is confirmed, could one of her first cases involve an issue about workers’ compensation?

I think so.

Last month, the Supreme Court asked the Solicitor General to submit a brief to help them decide to whether to hear an appeal from two Minnesota cases where that state’s high court decided that federal drug laws preempted Minnesota insurers/employers from needing to reimburse injured workers for medical marijuana under their state’s workers’ compensation laws.

Minnesota joined a growing number of states that have split over whether federal drug laws preempt their state workers compensation laws when it comes to medical marijuana. Last spring the United States Supreme Court declined to hear another conflict between state and federal law over air ambulances that split many state and federal jurisdictions.

But after reading the Minnesota decisions, I think it is more likely the Supreme Court will weigh-in over medical marijuana and workers’ compensation. Not only does medical marijuana involve a conflict between state and federal law, it is also implicates criminal law and separation of powers between the executive branch and the executive branch of the federal government.

Criminal law and medical marijuana in workers’ compensation

The split over medical marijuana in workers’ compensation turns on two questions 1) are insurers/employers aiding and abetting illegal activity under federal law by re-imbursing injured workers for medical marijuana through workers compensation and 2) are employers/insurers at risk of breaking the law by re-imbursing workers for medical marijuana.

The first question turns on how to interpret “aiding and abetting” and intent under criminal law. The second question goes to separation of powers issues. While marijuana is illegal under federal law, Congress has passed legislation through spending bills that prohibits the Department of Justice from prosecuting users and distributors of medical marijuana.

Further complicating the analysis is that fact the Department of Justice has shifted its policies about whether they will prosecute medical marijuana users and distributors depending on which party controls the White House.

As stated above, the medical marijuana cases also involve a question between whether federal powers to regulate interstate commerce conflict with state’s 10th Amendment police powers that are the constitutional basis for workers’ compensation. The court declined to ponder that conflict in the Texas air ambulance appeal last year. My hunch is that the Supreme Court believes federal criminal law provides a stronger basis to preempt state workers’ compensation laws than laws regulating air travel

For example, federal courts are moving away from giving deference to how federal agencies that regulate the domestic economy interpret the laws they enforce. But courts are still deferential to the executive branch when it comes to matters of national security.  My feeling is that conservative-leaning Supreme Court is going to federal criminal law as closer to a matter of national security than economic regulation.

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

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Workplace safety violation as violent crime? Employer jailed for workplace death

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In a bit of good news, former OSHA official Jordan Barab, blogged about a Washington employer who will serve jail time in connection with the death of an employee.

Alki Construction company owner, Phillip Numrich, will serve 45 days in jail, pay a $100,000 fine and agree to change business practice after pleading guilty to attempted reckless endangerment. The plea was in connection with the death of 36 year-old Harold Felton in a trench collapse in 2016.

King County prosecutors originally charged Numrich with second-degree manslaughter. Numrich was also fined by the Washington Department of Labor and Industry for the injury before criminal charges were filed.

I think this criminal prosecution is a positive development for injured workers for many reasons that I will spell out below.

Deterrence for employers – Workers’ compensation pays limited benefits to employees in exchange from them not having to prove employer fault. For the most part, I think this is a good deal for employees. But employees who get injured when their is clear fault on their employer think otherwise. They feel, somewhat legitimately, that their employer isn’t being held to account.

Now, OSHA or state agencies can fine employers for safety violations. But those fines are usually fairly small and employers sometimes don’t pay these fines . In the Washington case, the state fine was $25,750.

But the threat of prison time for workplace safety violations increases the risk for employers. I also like criminal liability as it leaves the no-fault aspect of workers’ compensation undisturbed. By that I mean, employees who are injured because their employer was at fault often don’t understand why they can’t sue them for negligence. But if fault analysis starts creeping in to how work injuries are compensated employees who may have been at-fault aren’t compensated.

Criminal liability for safety violations short-circuits that discussion. Employers are punished in the criminal justice system.  Victims of workplace safety violation usually want financial compensation. But criminal cases can involve financial restitution. I don’t know the details of the Washington case, there is no reason why a criminal sanction for a workplace death could not involve financial restitution for harms caused to a family.

Deterrence part 2, fines: The Washington case also involved a $100,000 fine. That amount seems fair and reasonable for the loss of a life. Back in 2019, I wrote about courts striking down excessive fines against employers for not carrying workers’ compensation insurance as unconstitutional.  I believe a different analysis applies to fine levels for a violent crime versus a financial crime.  I could certainly see a court strike down a $100,000 fine for not carrying workers’ compensation insurance as excessive, I can’t see a court striking down a $100,000 fine for a death.

Fairness to employees – In 2019, I wrote that I preferred civil remedies to criminal remedies for workers’ compensation fraud. On the balance I think that employees are more vulnerable to fraud convictions than employers. I don’t think the same analysis applies to workplace deaths. Employers control or should control the conditions of their workplace in a way that employees don’t. Employers are granted near dictatorial powers in the workplace, but with great power comes great responsibility.

More criminal prosecutions for workplace deaths? Even in Nebraska? Barab concluded his post with a list of prosecutors who had prosecutors who have prosecuted employers for workplace deaths. Could this national trend come to Nebraska? So far, I haven’t seen it, but that may change if Adam Morfeld is elected as Lancaster County attorney and or if Dave Pantos is elected as county attorney in Douglas County. I haven’t heard the candidates address the issue, but I am acquainted with both candidates. My impression is that Morfeld might be persuaded into prosecuting an employer, but I think Pantos would require less persuading to bring charges.

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

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Will Cajio v. Agra Transport make it easier for Nebraska employers to avoid workers comp.?

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The Nebraska Court of Appeals upheld a trial court ruling against a trucker that held he was an independent contractor rather than an employee, thus ineligible to receive workers compensation benefits for an on-the-job injury.

The decision, Cajio v. Agra Transport,  turned on what the court found to be the employers lack of control over the details of how the injured worker did its job on a day-to-day basis. If the decision remains controlling law, it could mean that more workers in Nebraska get classified as contractors and lose the protections of the Nebraska Workers’ Compensation Act.

A tough decision on worker classification

From an employee-advocate point of view, this decision is tough for a lot of reasons. The court held that decisions about employment status are mixed questions of law and fact, however the court did not cite to decisions that hold legal questions should be interpreted in favor of the injured worker under the beneficent purpose of the act. The absence of a beneficent purpose analysis may have reflected in the court citing to a tort case rather than a workers compensation decision for guidance as to why the workers was a contractor rather than an employee. Finally the court cited to Omaha World-Herald v. Dernier to support their conclusion without noting Dernier was largely overturned by the Legislature in 1999.

In his blog post about the decision, Thomas Robinson implied the case could have been decided differently under an ABC Test rather than Nebraska’s ten factor common law test. Robinson, who thought the case was correctly decided, stated approvingly that “states are free to allow greater contract flexibility between purported employers and those who perform the work.

I respectfully disagree with Robinson’s paean to the alleged intelligent design of federalism in workers compensation. Nebraska applies an ABC Test to unemployment benefits under Neb. Rev. Stat. 48-604(5). The decision about legal standards to apply are policy-driven in the courts and political in the legislative branch

In a blog about worker misclassification in general, Professor Michael Duff made the point I made above in more detail. He pointed out that the common law test was originally developed in tort law without any reference to workers’ compensation or guidance from the legislative branch.

Statutory employer laws to remedy misclassification?

While the so-called beneficent purpose doctrine isn’t per se guidance from the legislature, the Nebraska legislature has expressly provided guidance on the use of contracting to avoid workers’ compensation liability. Neb. Rev. Stat. §48-116 can make employers “statutory employers” if they engage in a “scheme, artifice or device” to avoid workers compensation. Judges seem to willing to find statutory employer liability in schemes involving multiple layers of contractors.

The Nebraska Supreme Court appeared to weaken statutory employer protections through the Aboytes case. My problem with the Aboytes case is that it applies the ten factor test at the bottom of the scheme where it may be more difficult to prove employment status. But I have read trial court decision, post-Aboytes that hold that “at-will” contract status can create the control necessary to prove control. I think this is sound logic, because the at-will doctrine does give employers vast control over their workers.

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

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What opponents of Lincoln’s fairness ordinance get wrong, but why they may partially win even if they lose in Lincoln

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Lincoln voters will soon find out whether the Nebraska Family Alliance succeeded in forcing a city wide vote on striking sexual orientation and gender identity as protected classes within Lincoln’s municipal human rights ordinance. Their petition drive is in response to the Lincoln City Council finally voting to include sexual orientation and gender identity within the ordinance after first broaching the subject nearly a decade ago.

Supporters of the expanding Lincoln’s municipal human rights ordinance to include sexual orientation and gender identity describe the expansion as the fairness ordinance.

Arguments made by the organizers of petition to repeal the fairness ordinance are misguided. To be charitable, I assert that one contributing factor to the misapprehension is probably misunderstanding the substantive details of civil rights laws and how Lincoln enforces its human rights ordinance.

Here what I think are the misconceptions and misunderstandings about the expanded protection in Lincoln’s human rights ordinance when it comes to workplace law.

The new ordinance is a radical expansion of the law. Trump-appointee, Associate Justice Neal Gorsuch wrote the opinion in 2019 that held discrimination based on sexual orientation or gender identity constituted unlawful sex discrimination in the workplace. That ruling applies to employees with 15 or more employees. The expansion of Lincoln’s human rights ordinance now means the employers with between 4-14 employees can not discriminate on the basis of sexual orientation or gender identity.

The ordinance discriminates against Christians – Civil rights laws protect religious discrimination on the job. In fact, religious exemptions are one way employees can legally be exempted from vaccine mandates. Further, evangelical Christians have successfully sued non-Christian employers for religious discrimination.

The ordinance discriminates against conservatives – The 1st Amendment doesn’t apply to private employers. Secondly, political ideology or belief isn’t a class protected by civil rights laws. So private employers have some ability to discriminate based on political belief in Nebraska.

The civil rights ordinance will be enforced by extra-legal means – The Lincoln Commission on Human Rights (LCHR) enforces Lincoln’s municipal ordinance on employment, housing and public accommodation.  Opponents of expanding anti-discrimination protections to the LGBT community portray the LCHR as some sort of over-woke star chamber looking to cancel conservatives and evangelical Christians for their beliefs. I served on the LCHR from March 2014 to December 2020. I can tell you that isn’t true.

According to the last annual report from the LCHR, the LCHR only found reasonable cause of discrimination in 3 of 44 cases in the last year. A reasonable cause finding doesn’t mean monetary penalties either. In order for that to happen, there is either needs to be a public hearing which amounts to a trial or a claimant can go to court.

I can tell you from personal experience that civil courts give little to no deference about what an agency like the LCHR or its commissioners believe about a case.  But even if parties go through the public hearing process, appellate courts can and sometimes do overturn decisions made by the LCHR.

In fact, the only way employees can sue their employer for discrimination if they work for an employee of 4-14 employees is to file with the LCHR. If they don’t file within 180 days, the employee can’t bring a claim. I believe these requirements to file administrative charges before suing actually protects employers.

However arguments made by opponents of legal protection of expanding civil rights based on gender identity under city law have some a sympathetic ear with an important audience – at least two current United States Supreme Court justices.

Why courts may agree with critics of Lincoln’s amended human rights ordinance

At least two Supreme Court justices, Neil Gorsuch and Clarence Thomas, believe that ordinances that prohibit public accommodation discrimination based on sexual orientation violate freedom of religion.  

In that case, Masterpiece Cake Shop v. Colorado Commission on Human Rights, a majority of the court overturned a finding against a business that refused to decorate a cake for a gay wedding because of comments made by state human right’s commissioners during proceedings to sanction Masterpiece.

I know when I served on the LCHR, commission staff used Masterpiece to cautions commissioners about how commissioners discussed cases during reasonable cause determinations. But I believe Masterpiece and its aftermath just re-enforces how courts freely disregard and second guess determinations made by human rights agencies such as the Lincoln Commission on Human Rights.

Also critics of civil rights laws have long argued that these laws violate the first amendment. Further religious employers have fairly broad protections against civil rights laws even in classes that wouldn’t directly seem to implicate religious practices such as disability discrimination.

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

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Nursing injuries soar during pandemic even as work injuries sink overall

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Data from the Bureau of Labor Statistics (BLS) showed that work injuries and illnesses for nursing employees soared in 2020 even as overall injury rates sank during the first year of the COVID-19 pandemic.

Injuries for nursing employees increased by 249 percent even as the number of non-fatal injuries by employees dropped form 2.7 million in 2019 to 2.1 million in 2020. Part of the increase in nursing injuries came from a jump in workplace respiratory illnesses that jumped from 10,000 in 2019 to 428,700 in 2020. That jump respiratory illnesses can likely be attributed to the COVD-19 pandemic.

But is the increase in nursing injuries solely due to COVID-19 infections? Probably not, health care workers are working longer hours and fatigued employees are more at risk of being injured. The COVID-19 pandemic is also leading to staffing issues. Short-staffed medical facilities tend to have more work injuries. Health care workers, like other workers, are also changing jobs as part of the so-called Great Resignation. New employees are at a higher risk for work injuries.

Short-staffing in nursing facilities is a particular concern in sparsely populated parts of Nebraska. Local media recently featured stories of nursing facilities closing in rural Nebraska due to staffing issues.

Fewer work injuries, more difficult claims?

The data from the BLS indicates some potentially challenging times for attorneys representing injured workers. Overall injuries decreased greatly during the first year of the pandemic. While occupational COVID-19 exposures might have come close to making up for the decrease in traditional work injuries, COVID-19 exposure cases are generally more difficult cases for employees to prove. Potentially hundreds of thousands of employees could go uncompensated or be vastly undercompensated for conditions related to COVID-19 exposure on the job.

The impact of the decline of service sector job losses due to the pandemic

It will be interesting to see the work injury data from the second year of the pandemic. The service sector has been most hard hit by job loss during the pandemic. While service-sector jobs are thought to be easier and safer than manufacturing, BLS statistics from 2018 showed injury rates in the retailing sector exceeding that of the manufacturing sector. The large drop in work injuries during the pandemic can likely be explained in part by massive job losses in the service sector due to the pandemic.

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

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Why Super Bowl Monday should be a national paid holiday

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Super Bowl Monday should be a national holiday.

At least one company, Heinz, gives their employees Super Bowl Monday or “Smunday” as a paid holiday.

I found out about “Smunday” when I was writing a blog post in 2017 about an eclipse that became a de facto holiday in Nebraska. The thesis of my post was that the eclipse was a way for hard-working Americans to take some time off work.

That post cited studies showing Americans worked the most hours of any industrialized country. Americans even worked about two weeks a year longer than the Japanese who coined a word, “karoshi” which means death by overwork.

The link to the study I cited in the post disappeared but I found more studies that confirm how Americans work much longer hours than citizens in other wealthy democracies. But not only do Americans work longer hours they work without guaranteed paid leave and with less job security under the employment at-will doctrine.

So yeah, Super Bowl Monday as a paid national holiday is the least we could do. Next month there will be stories about how the NCAA Men’s Basketball tournament costs business billions in “productivity.” Why not make March Madness a holiday too? Even if we did that, the average American would still work an average of 45-50 hours longer than their Japanese counterpart.

The so-called Great Resignation shows that many workers are fed up with their jobs. Lincoln Public Schools gave teachers Fridays off in January in part to give teachers and school staff a mental health break due to the stress of teaching during the pandemic. Time off is good for worker and physical health.

Nebraska has the second highest labor force participation rate in the country. This is a hard-working state, but even in Nebraska events like the state high school basketball tournaments in March and the College World Series in June become de facto holidays. People need a break. Super Bowl Monday as a paid holiday is the least we can do.

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

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No blood, no foul? What constitutes harm for an employment law case

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Supreme Court Chief Justice John Roberts described judging as calling “balls and strikes”. Last week we may have seen how one potential replacement for Associate Justice Stephen Breyer sees the strike zone on labor and employment law issues.

Last week, District of Columbia Court of Appeals Circuit Court Judge Ketanji Brown Jackson struck down the application of a management friendly “substantial impact” standard for a more employee-friendly “de minimus” standard when it came to the obligation of the federal government to bargain with employee unions over changes to working conditions.

Technically, the decision turned on the Federal Labor Relations Authority acting in an arbitrary and capricious manner in changing from the de minimus to the substantial impact standard. But in a bigger sense, the case reflects broader themes in employment law: what harms to employees done by employers can be legally actionable?

Wage and hour law: Is $125 per year “de minimus”?

The de minimus language in the federal labor case reminded me of a post I wrote in October about a wage and hour case involving Nelnet call center employees in Nebraska. The 10th Circuit Court of Appeals reversed a District Court decision finding wage loss of $125 per year due to unpaid time booting up computer and phone systems was “de minimus” and not covered by the federal Fair Labor Standards Act.

One assumption of civil litigation is that if a party doesn’t suffer economic harm, then they don’t suffer harm period. However that is not the case, at least according to black letter law.

Title VII and adverse action

In order for an employee to bring a discrimination claim an employee needs to show that an adverse action was taken by their employee. Here the standard is it doesn’t necessarily have to hit an employee in the pocket book,  but it has to do more than merely make them angry. In the context of retaliation case, the retaliation has to be sufficient that it would deter a reasonable person from taking the same so-called protected activity.

Broken windows employment law?

Employment law allows employees to bring cases for small and non-existent financial damages. That’s one reason why civil rights and wage and hour laws award attorney fees to prevailing parties. Another reason supporting employees bringing suits for small and non-existent money damages is similar to the broken windows theory of policing made popular in the 1990s. Under the broken windows theory, cracking down on minor crimes deterred more major crimes. The same logic should apply when it comes to civil litigation.

But the judiciary is reluctant to bring that philosophy to employment law. The reason is the employment at-will doctrine which was created by judges in the late 19th century and has the force of law in every state except Montana. The influence of the employment-at will doctrine can influence the judiciary to overlook what they perceive to be minor harms to employees even if they are motivated by unlawful purposes.

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

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Home is where the chart is when it comes to doctor choice in Nebraska workers’ compensation

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Nebraska workers’ compensation law allows injured workers to pick their own doctor to treat their work injury. But what if an injured worker picks their doctor to treat their work injury, but gets treated by another doctor at their doctor’s clinic?

I believe Nebraska law would let an injured worker see another provider who practices with an injured worker’s doctor. But, not surprisingly, some nitpicking types on the employer/insurance side of workers compensation don’t think an injured worker should be able to treat with the partner of an injured worker’s family doctor.

Why you should be able to treat for a work injury with another doctor at the clinic where your doctor practices

Under Nebraska Workers Compensation Court Rule 50(A)(2) an injured worker can chose a family physician to treat for a work injury. Per Nebraska Workers Compensation Court Rule 49(E) a family physician is one who maintains records and has a documented history of treating the injured workers or a family member.

So when it comes to workers’ compensation doctor choice in Nebraska, home is where your medical chart is found. For example, if your provider is Dr. Smith at the Main Street Clinic, Dr. Smith’s partner, Dr. Jones, should be able to treat you for a work injury if Dr. Smith is unavailable. The key fact is that your medical records are that clinic, which would aid any provider in treating you for a work injury.

The importance of doctor choice in workers’ compensation

Most people would probably say its common sense that you should be able to treat with a doctor at the same clinic as your regular doctor if your regular doctor isn’t available. But there is a whole cottage industry of management-friendly medical providers that seek to talk workers out of exercising their rights to pick their own doctor to treat a work injury in Nebraska. I wrote a post a few years back, picking apart some talking points to that effect sent out by an occupational medicine clinic in Omaha.

But management-side talking points about why injured workers shouldn’t pick their own doctors to treat work injuries aren’t solely based on faulty logic and assumptions. Intimidation substitutes for persuasion when it comes to employers and insurers pushing injured employees to employee-friendly doctors and medical providers.

What if your doctor is really a P.A. or nurse practitioner?

Lots of people get their primary medical care from physician assistants or nurse practitioners. If those providers practice under the supervision of a medical doctor, then I think an injured worker should be able to pick those providers. After all, the employee’s medical records are at the office of that provider.

But a P.A. or Nurse practitioner might not be able to testify by report in a Nebraska workers’ compensation case without a supervising doctor signing off on the report. But in serious injuries, primary care providers refer out to specialists who are almost always able to testify by report. And secondly, there is a distinction between who can testify by a report a workers’ compensation case and who can treat a workers’ compensation claimant in Nebraska.

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

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