Category Archives: Uncategorized

Good news, bad news when it comes to heat exposure and workplace law

Posted on June 12, 2022 by Jon Rehm

Nebraska law can be friendly towards weather-related injury and weather-safety whistleblower claims, but workers should expect extra scrutiny from courts on these types of claims.

Nebraskans started experiencing their first heat wave of the summer this weekend. Most of the state will see temperatures at or near 100 degrees Fahrenheit early next week. Nebraska workers face a mixed bag of news when it comes to state and federal workplace safety laws when it comes to heat.

Good news: Positional risk doctrine and weather-related work injuries in Nebraska.

In Nebraska, a worker who is injured as a result of extreme weather should be able to collect workers’ compensation because the state has adopted the positional-risk test – at least when it comes to tornados. Positional risk means that if you are injured at work because of a general or neutral risk like weather at work, then you can collect workers’ compensation for your injury. Not all states have adopted this rule which makes it harder for those workers to collect workers compensation for heat-related injuries.

Bad news: Heightened causation for heat-related heart attacks in Nebraska

One common heat-related injury is a heart attack. But heart attacks have a more difficult causation standard that typical work injuries in Nebraska. Nebraska typically has what is called contributing factor causation which means that a work injury or working conditions can combine with other personal factors and still be covered by workers’ compensation. But with a heart attack, an employee has to show that work substantially increased the risk of the heart attack. It’s not an impossible standard, to meet but at the very least it can give an insurer/employer the ability to initially deny a heat-related heart attack claim.

Good news: USDOL is pushing a heat standard

In contrast to the Obama administration, the Biden DOL is moving forward with a rule for heat exposure on the job. This is important because OSHA is more likely to sanction employers if they are violating a specific rule rather than the so-called General duty clause.

Bad news: It could take up to 10 years to enact a specific OSHA heat rule

Reporter Mike Elk of Payday Report and former OSHA official turned blogger Jordan Barab have done great writing and reporting about the delays in enacting workplace safety rules through OSHA. In regards to the heat rule, if everything goes right then a heat rule may get enacted sometime in 2027 or 2028. This is likely assuming a second Biden term or that Biden is succeeded by a Democrat in 2025. This isn’t a political blog per se, but those are big assumptions at this point.

Good news/Bad News: Private enforcement via whistleblower laws

However employees who believe that their employer is creating unsafe conditions related to heat can still call OSHA. From my experience, OSHA is more likely to take action if employees are willing to forgo anonymity in their complaint. Forgoing anonymity when making a complaint can also make it easier for an employee to succeed in a retaliation case.

While a general complaint about unsafe working conditions doesn’t always give you a right to sue your employer, employees in certain industries can ask for administrative hearings in retaliation cases. Further, Nebraska has a general whistleblower law that allows employees to sue employers in state court over retaliation.

Again, these cases are stronger if an employee is willing to call OSHA and forgo anonymity. State and federal judges have enacted many hurdles in retaliation cases that make it harder for employees to win these claims. I think part of the reason why judges have thrown up hurdles in retaliation cases is because most employees are reluctant to report misconduct to a government agency and want anonymity when they do. Bluntly, it seems like courts are adopting the “I’m the m-fer who called OSHA!” test for what constitutes a protected activity in a retaliation case.

The problem with being released back to work from an injury with no restrictions when you still probably have restrictions

Posted on June 5, 2022 by Jon Rehm

Being sent back to work with “no restrictions” can actually make it harder for injured workers to return to work and retain jobs

Recently I read medical records in two separate cases where doctors wrote they were doing my client’s favors by releasing them to work without restrictions when there was evidence of permanent damage or impairment from the injury.

The thought is that a worker with no restrictions will have an easier time returning to work. But in my experience, an inaccurate opinion that a worker has no restrictions makes it harder for an employee to return to work and retain work after an injury.

Vocational rehabilitation and return to work – In Nebraska, a worker who is unable to return back to work at a similar rate of pay because of an injury can be eligible for vocational rehabilitation benefits. Sometimes this means job placement, other times it can be mean re-training or further education. This also means being paid temporary total disability while being involved in a program.

An inaccurate statement from a doctor stating an employee has “no restrictions” makes it harder for an employee to obtain vocational rehabilitation. Nebraska law allows for awards of vocational rehabilitation based on an injured workers’ testimony. But that requires the delay and uncertainty of a hearing.

Sometimes and an employee is released back to work with impairment but no restrictions. The impairment entitles an employee to permanent disability and can be a basis for the Nebraska workers’ compensation court can appoint a counselor for vocational rehabilitation services. But without restrictions a counselor may have difficulty placing an employee in a job or developing a plan.

The bottom line is, if an employee has permanent restrictions given by a doctor, then vocational rehabilitation can start faster and counselors have a much easier time in developing job placement or retraining programs.

No restrictions. No reasonable accommodations under the ADA? Under the Americans with Disabilities Act an employee can ask for a reasonable accommodation based on a disability. An employee with a medical note that they have no restrictions will find it difficult to impossible to find an employer who will try to reasonably accommodate them.

While in theory, employees have some ability to testify to the extent of their own disability under the ADA, that testimony usually carries less weight in an ADA case than it does in a Nebraska workers’ compensation case. But even if an employee can succeed in an ADA case, that means an employer has taken some adverse action against them. Usually, but not always, this means they were fired. This also usually means an employee waits a year at shortest for an outcome.

But an employee can short-circuit this hassle if they have reasonably accurate work restrictions from an MD.

Getting fired for false representation of your injury? I think doctors who give their patients inaccurate work releases without restrictions could in some circumstances be setting up their clients for being fired. Employers can ask about prior injuries post-hire if it is job-related. An employee who is mislead into believing they have “no restrictions” may believe they have no restrictions. A doctor who purposefully releases someone back to work with no restrictions may also be re-enforce the falsehood that no one will hire a worker with restrictions.

So what could happen? The employee is unable to tolerate the job and maybe asks for an accommodation. Then it comes out the person had a prior injury. Lying on an employment application is a good way for an employee to get fired.

Nebraska law also makes it harder for employees who misrepresent their physical condition during the hiring process to collect workers’ compensation benefits.

No, having “no restrictions” won’t ruin your workers compensation case.

Nebraska workers’ compensation law allows employees to testify to the extent of their disability or injury so long as the injury is found to be work-related. But evidence that a doctor believes an employee has “no restrictions” gives employers a plausible excuse to delay benefit payments.

Lawyers for injured workers can often times “fix” a “no restrictions” report with results from a Functional Capacity Evaluation or FCE. Fortunately many doctors will order these tests, but not every doctor does. But even if the tests are ordered, an employee or their attorney can get stuck with the cost of the examination.

Counter-point: It’s about time unions had a “moment”

Posted on May 21, 2022 by Jon Rehm

A good union can shut down a lot of standard tricks from insurers/claims administrators/self-insureds in workers’ compensation claims

My fellow workplace law blogger, Cleveland-based management-side attorney-blogger Jon Hyman, has been raising the alarm about resurgent unionization drives in the wake of union victories at Amazon and Starbucks. His message to employers is that unions, long thought dead, are making a comeback.

One Jon’s fear and nightmare is another Jon’s hope and dream. In my 17 years of experience of representing employees in workers’ compensation and employment law cases, I can say it’s about time unions had a moment.

This is particularly true if an employee gets hurt on the job. Here are the major advantages of working union versus working non-union when you get hurt at work.

Job Security

Most union contracts require that an employer proves just or good cause to fire an employee. In practice this means proving some willful misconduct weighed against an employee’s work history and other mitigating factors. If and when push comes to shove, an employee has a good chance of overturning a termination in an arbitration proceeding.

In contrast, a non-union or at-will employee can be fired at any time. Sure most states, including Nebraska, have laws against workers’ compensation retaliation. But are those laws effective? A study by the Texas Department of Insurance questions the effectiveness of those laws. They reported 52 percent of injured workers were fired more than six months after being hurt on the job.

I’m not surprised as there are all sorts of pro-management tricks and traps in retaliation cases. For example, courts are reluctant to find protected activity, but even if they do they are raising the burden of proof for causation. There are also judge-made rules like the managers rule that disqualify certain employees from claiming retaliation and the good old-fashioned “honest belief” rule that often leads courts to discount false reasons for employment decisions.

Of course an employee also has the burden of proof in a civil case against their employer, so employees are a playing field tilted toward the employer. A lot of judicial precedent just pours grease on that uphill climb.

Job Security, Part 2: Extended leave and employee-friendly return to work programs.

Union contracts typically give employees protections above and beyond what is afforded to at-will or non-union employees.

One reason many injured workers lose their jobs is that their recovery takes longer than the mandated 12 weeks of protected leave under the Family Medical Leave Act. (This is particularly true if employers/insurers drag their feet on approving medical care) Further, even if an employer and employee go through a good faith interactive process to accommodate a medical condition as required by the Americans with Disabilities Act (and that’s a big if) the employee isn’t guaranteed a job.

Union contracts often address these concerns through extended leave provisions, negotiating return to work and light duty issues and giving employees seniority rights that allow them to bid into easier jobs. Unions can also build solidarity among co-workers which makes it easier for workers to informally accommodate disabilities among themselves rather than engaging in paper-heavy and adversarial process with human resources and/or occupational health.

Good union v. meh union when it comes to workers comp.

I just read over a union contract on workers’ compensation and return to work for a client. Like 1980s NBA action, it is fantastic. Not only do they negotiate return to work and light duty, they bargain for the employer to cooperate in the claim and to not interfere or retaliate for members who get hurt on the job. Further they place some limits on the company contacting their members. In other words, if a company engages in a lot of standard insurance company/claims administrator/self-insured shenanigans, the company could be looking at arbitration.

Some unions punt on workers’ compensation under the theory that since they don’t negotiate for workers’ compensation, they will leave it to the company. I don’t like that philosophy. But even in a union where the union takes a hands-off position towards workers’ compensation, the employee still has more job security and better benefits.

Good insurance benefits for denied workers’ compensation cases

Insurers and claims administrators like denying workers’ compensations cases on questionable circumstances. This is particularly true in states like Nebraska where employees can’t sue their workers’ compensation insurer for bad faith. If an employee doesn’t have health insurance, then they will often have a hard time getting the medical evidence they need to prove up their workers’ compensation case by going to the doctor.

But union employers tend to have good health insurance that allows employees to get the medical treatment they need for their health and for their disputed workers’ compensation cases. Sometimes employees can also collect private disability. Sure health insurance and disability liens can create hassles in resolving a workers’ compensation case, but getting health care and income far outweighs any inconvenience caused by dealing with potential liens at the end of a case.

Do non-union employers have similar benefits. Sometimes yes, but why do they have these types of benefits? Often times its to offer benefits similar to unionized plants. I see this frequently in meat packing in Nebraska. I litigate frequently against beef processing plants owned by Tyson in Lexington, Nebraska, Cargill in Schuyler and JBS in Grand Island. JBS and Cargill are union, Tyson isn’t. But Tyson’s benefits and even some of their leave policies are similar to the unionized plants. Tyson has to keep up with JBS and Cargill.

Will fading federal privacy rights limit ability of injured workers to protect privacy?

Posted on May 9, 2022 by Jon Rehm

But if states enshrine privacy rights in their state constitutions in reaction to probable Roe reversal will it limit the influence of insurance case managers in workers’ compensation claims?

If the United States Supreme Court does in fact overturn Roe v. Wade, as it seems they will based on a draft opinion leaked last week, it would be the most important Supreme Court decision in decades. But does the decision have any impact on the state-based, statutory and administrative world of workers’ compensation?

I think it could when it comes to the use of nurse-case managers and the right to privacy. Case managers will often attend medical appointments with injured workers. Experienced case managers are able to direct medical care in a way advantageous to employers in workers’ compensation cases. States that have rights to privacy in their state constitutions such as Illinois and Montana, are able to reign in insurance case managers from interfering with the medical care of injured workers in workers’ compensation cases.

But, Justice Alito’s draft opinion in the Dobbs case calls into question the right to privacy under the United States Constitution. In theory, even if a state constitution didn’t expressly contain a guarantee of privacy, an employee could at least at least use a federal right to privacy to limit the access of a case manager to medical information. But if Roe v. Wade is gone or dead letter law, that option is gone for injured workers.

Red states v. Blue states and the right to privacy

In 2020, I wrote that anti-abortion organizations and elected officials would likely try to block any efforts to impose a state right to privacy in the Nebraska state constitution. I could see that happening in other Republican-dominated red states. But will other “blue” or Democratic-governed states follow Democratic-governed Illinois in guaranteeing a right to privacy in their state constitutions to protect reproductive health and abortion rights? We will see. But if those states did enact right to privacy amendments, they could impact the day-to-day business of workers’ compensation claims in a way that could benefit workers.

Waiving privacy in an injury case?

But even if employees can keep hostile third-parties out of medical appointments in workers’ compensation cases, normally private medical information is usually fair to ask about and disclose in a workers’ compensation case. Nebraska follows the civil discovery rules in workers’ compensation cases which gives employers a lot of leeway to look into medical history and subject injury claimants to medical examinations. Sometimes these inquiries can be demeaning. Employees do have some tools to stop excessive and unreasonable requests for medical information, but if the right to privacy is weakened they have one less tool to protect their dignity in a workers’ compensation claim.

Hopefully SCOTUS just sticks to intergovernmental immunity in Hanford occupational disease presumption case

Posted on April 17, 2022 by Jon Rehm

The United States Supreme Court is set to hear arguments Monday on what is hopefully the narrow issue of whether inter-governmental immunity applies to a Washington state law that creates a presumption of compensability for occupational diseases for workers at the federal Hanford nuclear site.

Under the Supremacy Clause, states can’t tax or regulate federal entities without the permission of the federal government. During the New Deal era, Congress allowed state workers’ compensation laws to apply to workers’ on federal projects.

In United States v. State of Washington, the federal government is arguing the State of Washington is unlawfully discriminating against the federal government by enacting a law that only applies to workers at the Hanford site. The state of Washington amended the statute to apply the presumption to all nuclear workers and is arguing the federal government’s case is now moot.

So why should anyone outside the state of Washington care about this case? Beyond the conflict between state workers’ compensation laws and federal law (what Professor Micheal Duff sometimes deems empty preemption), this case interests me because it places the issue of issue of burden-shifting presumptions in front of the United States Supreme Court.

To be clear, the federal government isn’t contesting the state of Washington can create presumptions. But in the wake of the COVID-19 pandemic, many states created presumptions of compensability for COVID-19 exposure in the workplace because of the difficulty of proving whether COVID-19 was covered under traditional workers’ compensation statutes. Some of the employer/insurer-side of workers’ compensation are complaining about the unfairness of these presumptions. Thankfully, no one from the employer/defense-side has filed an amicus brief in this case.

However, the Workplace Injury Law and Advocacy Group (WILG) filed a brief in support of the Washington law. (I am a board member for WILG) I think the WILG brief does a good job of arguing that workers’ compensation is traditionally a state law concern and that presumptions have been found constitutional by state Supreme Courts. But I have a lingering fear about some footnote, dicta, concurring opinion or dissent that criticizes the idea burden-shifting presumptions in general. While that language wouldn’t be controlling on states, it could certainly be persuasive for parties seeking to challenge presumption laws.

Failure of Weil nomination heralds more of the same for federal involvement in workers’ comp.

Posted on April 3, 2022 by Jon Rehm

Democratic Senators Joe Manchin, West Virginia, joined Kyrsten Sinema and Mark Kelley, Arizona, and 50 Republicans to torpedo the nomination of Professor David Weil to the head of the Department of Labor’s Wage and Hour division.

Weil, who held the same position during the Obama administration, was a critic of gig economy firms like Uber who misclassify workers as independent contractors. Independent contractor status exempts companies from having to comply with wage and employment laws such as workers’ compensation.

Readers of this blog, likely know state workers’ compensation laws determine whether a worker is an employee and that is a separate analysis about what constitutes an employee for purposes of federal law. Readers of this blog also know that Weil likely would have ran into a steel re-enforced concrete wall of the federal judiciary in trying to enforce federal wage and hour laws for the benefit of workers.

But the failure of Weil likely signals that there is likely no substantive federal legislation that will address deficiencies in state workers’ compensation laws. In 1970, Congress established OSHA and authorized National Commission on State Workers’ Compensation Laws in response to concerns over the sufficiency of state workers’ compensation laws. The recommendation of the Commission lead many states to improve workers’ compensation laws for the benefit of workers.

But if the Senate can’t even confirm someone like Weill to the Department of Labor, then it seems unlikely that the federal government will do anything to improve state workers’ compensations laws.

Many lawyers who represent injured workers take Ronald Reagan’s adage about the government to heart in their practices when it comes to federal law. Whether it’s the byzantine workers’ compensation laws for federal employees, the difficulties of ERISA liens, headaches with Medicare in settling cases or what Professor Michael Duff describes as empty pre-emptions around nuclear workers and air ambulances, workers’ compensation plaintiff’s lawyers are often among the most vehement supporters of state’s rights.

But as evidenced by OSHA and the National Commission, the federal government can be a positive influence on workers’ compensation. But for most workers’ compensation lawyers in practice today, federal law and federal agencies are just another hurdle to overcome in getting justice for client’s injured at work. Unfortunately, that reality doesn’t look to change anytime soon.

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

Posted on March 23, 2022 by Jon Rehm

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 10^th 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 view federal criminal law as closer to a matter of national security than economic regulation.

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

Posted on March 16, 2022 by Jon Rehm

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.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

Published by:

Category Archives: Uncategorized

Good news, bad news when it comes to heat exposure and workplace law

The problem with being released back to work from an injury with no restrictions when you still probably have restrictions

Counter-point: It’s about time unions had a “moment”

Will fading federal privacy rights limit ability of injured workers to protect privacy?

Hopefully SCOTUS just sticks to intergovernmental immunity in Hanford occupational disease presumption case

Failure of Weil nomination heralds more of the same for federal involvement in workers’ comp.

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

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

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this: