Category Archives: Workers’ Comp Basics

Recalling the Forgotten Provision of the ‘Grand Bargain’

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grand-bargainThe Oklahoma and Florida supreme courts both overturned anti-worker changes to their state workers’ compensation laws based in whole or in part on their state constitutions. Workers’ compensation laws, for the most part, are state laws. This post seeks to explain why workers’ compensation laws are state laws and what that could mean for workers’ compensation laws in the future.

The vast majority of workers’ compensation attorneys and industry observers know the term “Grand Bargain.” In the “Grand Bargain,” employees gave up the right to sue their employers in tort for work injuries in exchange for defined benefits regardless of fault.

Workers’ compensation laws emerged roughly a century ago. However, Congress did not have the power to enact the “Grand Bargain” because of how the U.S. Supreme Court interpreted the Commerce Clause. In 1895, the court held in United States v. E.C. Knight that manufacturing was not commerce. In 1918, the court overturned a law prohibiting child labor on similar grounds and additionally held that the effects of child labor did not have enough of an impact on interstate commerce to justify regulation.

The Supreme Court did uphold the constitutionality of workers’ compensation laws in the case of New York Central Railroad v. White. However, the court upheld workers’ compensation laws based on a state’s so-called “police powers” under the 10th Amendment.

During the New Deal era in the 1930s, the Supreme Court’s interpretation of the interstate commerce clause changed so that workers’ compensation laws could have been enacted by the federal government. But by then, most states had workers’ compensation laws, so a general federal workers’ compensation law was unnecessary.

‘Federalization’ in the Post-New Deal Era

In the 1970s, Congress passed laws regarding occupational safety (Occupational Safety and Health Act) and employee benefits (Employee Retirement Income Security Act) under its authority granted by the interstate commerce clause. But neither OSHA nor ERISA were intended to interfere with state workers’ compensation laws.

The 1970s also saw an ultimately failed effort to impose federal minimum standards on state workers’ compensation. It was in this era that the term “federalization” and the concerns about the impact of federal laws on state workers’ compensation systems emerged.

Federalization re-emerged as an issue in the 2000s when concerns arose that the costs of workers’ compensation injuries were being shifted onto Medicare, and the federal government tried to fashion remedies to shift the cost back onto the workers’ compensation system. The effect of the Affordable Care Act on workers’ compensation was another federal issue that was hotly debated in workers’ compensation circles.

Finally in President Obama’s second term, OSHA issued many rules about medical care and drug testing  that could have affected workers’ compensation laws. Democratic presidential candidate Bernie Sanders and other elected leaders also wrote a letter to the Secretary of Labor pointing out the failure of state-based workers’ compensation systems.

Conventional wisdom is that the election of Donald Trump paired with a Republican Congress will end the Obama era efforts at federalization of the workers’ compensation system. There is probably a fair amount of truth to this idea, but the Trump era may not spell the end of federalization of workers’ compensation.

In the 2010s “sharing economy,” companies such as Uber and Lyft emerged. The business model of these companies is premised on workers being independent contractors. However, this has created litigation and uncertainty for these companies. In 2015, the Democratic-aligned Brookings Institute hosted a discussion about the “reforming” labor laws for companies like Uber. Though workers’ compensation laws are traditionally state-based laws, there is no constitutional prohibition on designing workers’ compensation systems at a federal level. Unfortunately, it seems as some Democrats could find common ground with Donald Trump and House Speaker Ryan to amend ERISA and the Fair Labor Standards Act to exempt Uber drivers and other sharing economy workers from laws such as workers’ compensation.

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.

This entry was posted in Legislation, OSHA, United States Supreme Court, Workers' Comp Basics, Workers' Compensation, Workers' Compensation Reform and tagged , , , , , .

Will It Hurt My Workers’ Compensation Case to Get a Job?

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accommodations“Will getting a job hurt my case?”

I hear this question on a regular basis from my workers’ compensation clients. In my experience, the answer is almost always “no.” But if you do find alternate or part-time employment during your workers’ compensation case, you need to keep track of and disclose your earnings.

Why working when you are injured can help your case:

  1. Working helps your credibility with doctors and judges:
    Doctors and judges are the two most important people in your case, because the doctors drive the medical evidence and the judge weighs that evidence. Ultimately, those decisions come down to a doctor or judge’s determination of your character. A judge is going to give the benefit of the doubt to someone who is trying to help themselves. That’s also why complying with doctor’s orders and rehabilitation programs helps your credibility in court.
  2. Just because you’re working doesn’t mean that you are not significantly or even totally disabled:
    Maybe your company is bending over backward to keep you. Maybe a sibling or a parent has you working at their business. In situations like that, a court is going to understand you are earning wages beyond your real potential to earn wages. You may also be enduring tremendous amounts of pain to maintain employment. In cases like that, especially if you had a good employment record and complied with your doctor’s orders, the fact that you are working through pain could very well help your credibility.

How to hurt your case when you work:

  1. Not disclosing your wages and employment:
    This is especially true if you are working while receiving temporary disability benefits or unemployment benefits. This makes you look dishonest, and you might be committing fraud in many states. Additionally, once you are in the legal process, you normally have a duty to disclose that information to your employer/insurer anyway. Even if a judge believes that you inadvertently forgot to turn over this wage information, you are still making it more difficult for your attorney to win you benefits.
  2. Clearly working beyond your medical restrictions:
    Let’s say a doctor takes you off work as a nurse because you can’t lift more than 25 pounds and bend and twist on a regular basis, but you keep working as a CrossFit instructor, where you regularly do heavy lifting that involves bending and twisting. If you are that person, don’t call our law firm. Though employee fraud is a very small percentage of overall fraud, conduct like that would likely be workers’ compensation fraud. Again, working can help with your credibility in a workers’ compensation case, but being dishonest about that work can hurt your case.

If you have questions about specifics in your or a loved one’s workers’ compensation case, please contact an experienced workers’ compensation lawyer.

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.

This entry was posted in Work Injury, Workers' Comp Basics, Workplace Injury and tagged , , , , .

Workers’ Compensation Basics: Trials

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judgeIf your workers’ compensation claim has been denied or if there are any disputes involving your workers’ compensation claim, your lawyer may file a Petition with the Workers’ Compensation Court. This Petition is a lawsuit against your employer and the workers’ compensation insurance carrier, seeking benefits to which you are entitled but are not properly being paid.

Once a Petition has been filed, the case will be assigned to one of the seven workers’ compensation judges in Nebraska. Then, the case will eventually be given a trial date; this date is usually less than a year after the petition is filed (nine months is a good estimate).

The trial will then be held in the county where the accident occurred. If the accident occurred out of state, then the trial will be held in Lincoln. However, the parties may agree to have the trial anywhere within the state if another location is more convenient for those involved. In situations where it may be difficult for a witness or party to attend trial in person, the parties may agree to conduct the trial via videoconference with the judge.

When it comes time for trial, the judge assigned to the case will hear all of the evidence (including the testimony from all witnesses). The trial usually takes about a half day or sometimes a whole day, depending on the number of witnesses. Rarely do workers’ compensation trials go beyond one day. After the trial has concluded, the judge will issue a decision in approximately one to six months. At times, however, issuing the decision can take even longer than six months on more complicated cases. The decision will be either an Order of Dismissal of the case or an Award of Benefits for the case. In either instance, any issues that were presented at trial will have been addressed by the Court in the decision, which is a final order. Although the decision is final, either party may choose to appeal the decision to the Nebraska Court of Appeals and/or eventually to the Nebraska Supreme Court.

Today’s blog post is a part of a continuing series that explores the basics of workers’ compensation. Please read the previous blog posts in the series by clicking on these links, and be sure to consult an experienced workers’ compensation lawyer with questions:

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.

This entry was posted in Nebraska, Trial, Workers' Comp Basics, Workers' Compensation and tagged , , , , , .

Workers’ Compensation Basics: What is Vocational Rehabilitation?

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Along with payment of medical bills, time off of work, and permanent injury benefits, Nebraska laws include a unique workers’ compensation benefit: vocational rehabilitation.

To understand how the vocational rehabilitation benefit works in Nebraska, one must understand that the primary purpose of workers’ compensation is to restore an injured worker to gainful employment.

In order to accomplish that purpose, the workers’ compensation laws provide guidance of the following priorities: 

  1. Return to the previous job with the same employer;
  2. Modification of the previous job with the same employer;
  3. A new job with the same employer;
  4. A job with a new employer; or
  5. A period of formal training that is designed to lead to employment in another career field.

The goal of “gainful employment” is to get the employee back to making equal or similar wages to what he or she was making at the time of the injury. As a result, sometimes an injured worker’s permanent restrictions (resulting from the work injury) are such that he or she cannot return to work in the previous job. Further, the employer may not be able to modify or give him or her a new job within those restrictions.

Thus, if the goal of “gainful employment” cannot be accomplished by numbers one through three above, a vocational-rehabilitation specialist may be appointed in order to provide vocational-rehabilitation services such as job placement, training, or even further education. The expenses of the aforementioned are covered by the state’s Workers’ Compensation Trust Fund. During the time the injured worker is undergoing job placement, training, or education, he or she is entitled to temporary-disability benefits from the employer. This is a wonderful benefit, and some of our clients have even been able to go to college for a two-year or even four-year degree in order to return to the workforce and make similar or more money than they were making at the time of the accident and injury.

Today’s blog post is a part of a continuing series that explores the basics of workers’ compensation. Please read the previous blog posts in the series by clicking on these links, and be sure to consult an experienced workers’ compensation lawyer with questions:

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.

This entry was posted in Workers' Comp Basics, Workers' Compensation, Workplace Injury and tagged , , .

Workers’ Compensation Basics: Emotional, Psychological Injuries in Nebraska

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nurseThis blog post is the next in a series that examines the basics of workers’ compensation. It gives information on the compensability of emotional or psychological injuries in Nebraska.

The Nebraska Supreme Court recently released a new opinion in Hynes v. Good Samaritan Hosp., 291 Neb. 757 (Sept. 4, 2015) concerning the causation standard for emotional or psychological injuries in workers’ compensation injuries. This is a favorable decision for injured workers in Nebraska, and very necessary progress in the recognition and legitimization of these types of injuries. It is also progress in the struggle against the stigma associated with mental-health issues in general.

The plaintiff in the Hynes case was attacked by patients on three separate occasions while working as a nurse. She suffered some physical injuries, but ultimately required extensive treatment for major depressive disorder and PTSD and was unable to work due to her mental injuries. This decision clarified that where there is sufficient evidence to find that a psychological injury is directly related to the accident and the employee is unable to work, the employee is entitled to compensation. Before this decision, plaintiffs were generally met with the burden of showing their mental injury was directly linked to ongoing pain from a physical injury.

Nebraska law does still require a work-related accident and physical injury for most injured workers (there is an exception for mental injuries unaccompanied by physical injuries for an employee who is a first responder). An injured worker must suffer some “violence to the physical structure of the body,” rather than an injury caused by a mental stimulus only. Additionally, even where an injured worker has suffered a physical injury, mental injuries entirely attributable to other factors – such as the stress of litigating a workers’ compensation claim, where there is no physical injury related to the mental injury – are considered an intervening event and therefore not compensable. Where a mental injury is attributed to both a physical injury and the psychological stress of issues such as immobility and inability to work, the claim may be compensable.

Just like most physical injuries, proving a mental injury is related to a work-related accident requires that an injured worker seek treatment and obtain an expert opinion from a doctor. The doctor must find that the injured worker sustained physical and psychological injuries as a proximate result of a work-related accident.

Working toward recovery from a mental injury can take as long as or longer than recovering from a physical injury, and the effects can result in vast negative repercussions for an injured worker and their family. Receiving medical and psychological care and other compensation while in the recovery process can make all the difference in the world to the ultimate outcome for an injured worker dealing with a mental injury. Determining whether you have a compensable claim, and obtaining this care and compensation can be complicated, so consult an experienced workers’ compensation attorney for help.

Please read the previous blog posts in the workers’ compensation basics series by clicking on these links:

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.

This entry was posted in doctors, mental health, Mental Injuries, PTSD, Workers' Comp Basics, Workers' Compensation and tagged , , , , .

Workers’ Compensation Basics: Payments to Workers and their Families

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Here’s the next installment in the firm’s series that focuses on the basics of the workers’ compensation system. It gives information on how payments to injured workers and/or their families are handled. 

Workers’ compensation generally pays by the week, although it may be paid bi-weekly or monthly in some circumstances. The amount of the payment is established by state laws or statutes, regulation or court decision. 

Family members are paid in the event of the death of a worker arising from an accident or disease. Family members are occasionally paid for providing home-health care.     

The amounts paid and duration of payment varies from state to state. Generally there is a minimum and a maximum. The maximum is usually two-thirds of the gross wages earned, with a limit that is adjusted from time to time. 

To calculate the amount actually paid, most states use average wages for a specified number of weeks or months before the injury, death or disease. 

Payments are made for temporary inability to work, which is generally labeled temporary total disability. There may be a waiting period before payments begin. The waiting period varies from state to state. 

Payments are also made when a worker is temporarily limited to light duty and working either fewer hours or for a lower rate of pay. These benefits are called temporary partial disability. 

Payments are made for permanent inability to work and, if severe enough, some states pay for the worker’s lifetime. Some states do not pay for less than lifetime. These benefits are called permanent total disability. 

Payments are made for permanent reduction of the ability to work. This benefit is normally labeled permanent partial disability. 

Payments that are made for loss of body parts or limited use of body parts are also labeled permanent partial disability. State law establishes the value of the various body parts. 

Payments are less frequently paid while workers are participating in retraining or vocational rehabilitation. This is not a common benefit. 

WORKERS’ COMPENSATION DOES NOT PAY FOR PAIN AND SUFFERING. 

It is important to contact an experienced workers’ compensation lawyer if you have questions or concerns about any of the information shared here. Please read the previous blog posts in the workers’ compensation basics series by clicking on these links: 

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.

This entry was posted in Workers' Comp Basics, Workers' Compensation, Workplace Injury and tagged , , , , , .

Workers’ Compensation Basics: Understanding the Injured Worker’s Right to Medical Care

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choose-a-family-doctorHere’s the next installment in the series that looks at the basics of workers’ compensation.

Under the Nebraska workers’ compensation laws, you may have the right to choose a family doctor to treat you for your work-related injury.

You may choose a doctor who has treated you or an immediate family member before this injury happened.

Immediate family members are your spouse, children, parents, stepchildren and stepparents. The doctor you choose must have records to show that past treatment was provided.

If you want to choose your doctor, you must tell your employer the name of the doctor you choose.  You need to do this as soon as is practical after the accident or as soon as your employer gives you the notice of the right to choose your family physician to treat you for your work injury form.

If you are in need of immediate medical attention and or emergency medical care, you have the right to obtain care immediately.

If you, or your family, do not have a family physician, then your employer has the right to choose the doctor to treat you.

However, if your workers’ compensation claim is denied for any reason, you have the right to choose any doctor to treat you for your injury.

Any time you are faced with a major surgery recommendation for your injury, you have the right to choose the surgeon to do the surgery.  You can choose any surgeon.

If you have any questions about your medical rights please feel free to contact us.

Read the previous blog posts in the workers’ compensation basics series by clicking on these links:

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.

This entry was posted in Doctor, Doctor Choice, Nebraska, Workers' Comp Basics, Workers' Compensation and tagged , , , .

Workers’ Compensation Basics: Understanding Medical Care and Treatment

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Doctor_examines_patientThis blog post is the next in the series that examines the basics of workers’ compensation.

The first, and perhaps most important, workers’ compensation benefit is the medical benefit. This is a workers’ compensation benefit that includes payment of all treatment for a work injury. The treatment can be as small as stitches from a cut finger all the way to complex spine surgery. Regardless, the treatment and medical care should be covered 100 percent by the employer or workers’ compensation insurance company. There is neither co-payment nor deductible due for the treatment for the work injury. This medical coverage for work injuries can potentially last for life, depending on the injury and circumstances.

Not only is all treatment, like surgery, covered for work injuries, but so are other methods of rehabilitation: like physical therapy and medication. In other words, there should not be any co-payments for physical therapy, prescription medication, or other medical devices. Further, the mileage traveling to and from the treatment (or even to the pharmacy) should be reimbursed. This year that rate is 57.5 cents per mile.

These tips below are important to ensure that all of your medical bills and prescriptions for your work injury continue to be properly paid in full.

When you go to your doctor for treatment, make sure to inform your medical provider that you are seeing them for a work-related injury or illness, and ask them to send the bills to your employer. Also, make sure to thoroughly explain to your medical provider how you were injured or how you became ill. Give details about how the accident or work activities injured you or made you sick. Finally, inform the medical provider everything about your injury or illness: where you hurt, how the pain feels, your ability to function at home and work, etc. If your doctor wants you to avoid certain activities in order to promote healing, be sure to get a written copy of those restrictions from your doctor.

Look for information about choosing a physician (physician choice) to treat a work injury in an upcoming blog post in the workers’ compensation basics series.

Read the previous blog posts in the series by clicking on these links:

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.

This entry was posted in Cancer, Doctor, health insurance, healthcare, mental health, prescription drugs, Workers' Comp Basics, Workers' Compensation and tagged , , , .