Category Archives: Workers Compensation

Who is this nurse case manager and why are they talking to doctor about my workers’ comp. case?

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Work injuries create many problems; pain and loss of function from the injury, medical bills, lost wages and fear of employer-retaliation to name a few. But today I want to post about another hassle that comes with a work injury:

Nurse case managers.

Nurse case managers are nurses from the insurance company or workers’ compensation claims administrators who attempt to “manage” medical care for injured workers. While nurse case managers talk about “patient advocacy”, they work for the insurer or claims administrator. From what I can tell, their version of “patient advocacy” is to talk doctors into releasing injured workers from care without restrictions and without future medical care.

Nebraska courts hold that nurse case management services benefit employers. So why does Nebraska allow nurse case managers to run amok, while other states strictly regulate them? Nebraska’s state constitution and our state’s workers compensation rules explain why nurse case managers can get away with violating the privacy of injured workers.

The right to privacy under state constitutions

Nebraska does not recognize a right to privacy in our state constitution.  Montana and Illinois recognize a right to privacy in their state constitutions. That right to privacy under those state constitutions is part of the reason why nurse case managers on a tight leash in those states. Courts in those states have ruled that injured workers have a strong privacy interest in their medical records and laws that impair that privacy should be subject to strict scrutiny.

But it’s not just nurse case managers who try to interfere with the doctor-injured worker relationship In Nebraska attorneys for employers and insurance companies often to talk to the doctors of injured workers.  These conversations are usually had for the purpose of getting doctors to change their mind about their opinions in the case. Since these lawyers are representing an insurance company who pays their bills, most doctors are willing to speak with these attorneys. (It’s a different story for lawyers who represent injured workers in workers compensation cases.)

Like defense attorneys, nurse case managers are a representative of the insurance company/employer. They have a right to communicate with medical providers under Nebraska law. And again, the nurse case managers have some leverage over medical providers. They may also develop professional relationships with providers that can help their work.

Will Nebraska amend our state constitution to guarantee a right to privacy? The right to privacy is often used to support abortion rights, so any effort to amend our state constitution to allow for a right to privacy would likely be opposed by anti-abortion activists who are influential in Nebraska.

Why the Rules of Discovery undermine privacy

But even if Nebraska had a right to privacy in our state constitution, Nebraska would either need to pass legislation and or change the workers’ compensation court rules to regulate nurse case managers. I’m not sure that would be feasible without some other changes to rules within the Nebraska Workers’ Compensation Court.

The rules of civil discovery apply within the Nebraska Workers’ Compensation Court. Those rules give employers and insurance companies broad leeway to pry into the medical history of injured workers. States like Illinois adjudicate workers’ compensation claims as administrative claims. In administrative systems employers have more restricted access to an injured workers’ health history.

Fighting back against nurse case managers

While Nebraska law permits the use of nurse case managers, Nebraska law can be used against nurse case manager. Many attorneys in Nebraska believe that nurse case manager notes are discoverable. Those notes often reveal admissions that help injured workers.

Our firm routinely tells nurse case managers not to have contact with our clients. Sometimes that means nurse case managers will stay out of examination rooms. I have used the discovery rules against nurse case managers on the issue of when they knew about permanent impairment for the purposes of penalties under Neb. Rev. Stat. 48-125. I think it’s fair to inquire about any licensing issues a nurse case manager may have had through discovery. I think its also fair to impeach a nurse case manager with evidence of licensing issues on cross-examination.

Final thoughts on nurse case managers

Overall, Nebraska has good workers’ compensation laws – particularly in comparison with neighboring states. But, Nebraska law is less favorable than other states when it comes to nurse case managers. If one gets involved in your workers’ compensation case, it might be a good idea to call a lawyer.

(Credit to Mark Perper and Tom Murphy for sharing Illinois and Montana claw on this issue on the WILG listserv)

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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OSHA reverses course on COVID-19 reporting

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In what amounts to a reversal of policy, the Occupational Health and Safety Administration (OSHA) is requiring most employers to record possible COVID-19 exposure on the job. OSHA’s reversal will make it easier for workers to prove workers’ compensation claims for COVID-19 exposure.

Per OSHA requirements, employers must conduct a basic investigation about the potential causes of COVID-19 exposure. Employers must give employees any OSHA reports, upon request, about their work-related injury or illness.  Employees should also be able to obtain OSHA reports through discovery in a workers’ compensation case or from a union representative.

OSHA’s reversal increases the chances that state workers’ compensation agencies and courts will report better information about COVID-19 exposure. As I wrote in April, employers tend to blur state and federal reporting standards.

OSHA’s reversal on COVID-19 reporting coincides with the AFL-CIO suing the agency to impose stricter standards for COVID-19. In addition to the AFL-CIO suit, a workers’ group sued meatpackers over the public health effects of COVID-19 outbreaks at packinghouses. The reversal of policy also coincides with a group of state attorney generals suing Amazon over workplace COVID-19 data.

More federalization of workers’ compensation

But while OSHA’s actions place a small thumb on the scale for workers’ rights, the specter of federal immunity for COVID-19 workers’ compensation claims lingers. The Senate has yet to take up the latest COVID-19 bailout package passed by the House of Representatives.

But there may be some somewhat positive federal legislation impacting state workers’ compensation law. Rep. Joe Kennedy III (D. Mass) introduced a special fund that would compensate essential workers and their families effected by COVID-19 through a federal program. This legislation is modeled on a federal fund for workers killed and injured due to the September 11, 2001 attacks.

Another bit of good news is that the Senate passed a presumption for death benefits for first responders killed in the line of duty duty related to COVID-19. In my view, general federal immunity for workers’ compensation can co-exist with a presumption of compensability for first responders. I, and other workers’ compensation bloggers/commentators have written frequently about a two-tier workers compensation system. Legislators tend to favor first responders like police and firefighters. This political favor leads to the benefit of presumptions of coverage for certain injuries and protections for ‘mental-mental” injuries unavailable to less favored workers.

The rise of the essential worker?

Workers like retail workers belong to the second or less favored tier — or at least they did before COVID-19. COVID-19 has introduced the concept of the “essential worker” into mainstream discourse. Many states have looked to include essential workers in enhanced workers’ compensation laws for workers exposed to COVID-19. I’ve been writing about and advocating for these workers for years. But I guess it takes a public health crisis to recognize the importance of retail, warehousing, delivery and meatpacking workers.

Legislative changes in Nebraska?

Last week, Nebraska announced it will re-start our Legislature on July 20th. The Unicameral generally adheres strictly to unwritten norms about deference to committees. Generally, a bill about expanding workers’ compensation benefits would be discussed in the Business and Labor Committee. But the COVID-19 crisis is a highly unusual situation. It will be interesting to see if there are any COVID-19 related changes to workers’ compensation laws made when the legislature restarts.

COVID-19 related changes to workers’ compensation may have to wait until next year in Nebraska. Of course there could be a different legislature depending on the outcome of November’s elections. This is all the more reason to research, vote for and support legislative candidates who support expanding 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.

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UPS far from the only employer under-reporting workers’ compensation claims

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Fatima Hussein wrote a well-reported story for Bloomberg Law about UPS discouraging or under-reporting workers’ compensation claims.

This practice is sometimes known as claims suppression. Claims suppression is a common issue in workers’ compensation. Lawyers from coast to coast, Tara Reck in Washington state and Jeff Blackwell in Alabama, have recently written about the topic.

Washington state, to their credit, formally recognizes the concept of claims suppression in their law and identifies the practice. In Washington, employers guilty of claims suppression can be civilly fined. Employees can also apply to their workers’ compensation board to extend statute of limitations if claims suppression lead them not to file a claim.

Claims suppression in Nebraska

Though Nebraska doesn’t formally recognize the term claim suppression in our law, we have similar remedies to Washington state for the practice. Employers can be prosecuted for the misdemeanor of not filing a first report of injury with the Nebraska Workers’ Compensation Court. The failure of an employer to file a first report of injury also automatically extends the two-year statute of limitations to file a petition in the Nebraska Workers’ Compensation Court.

In my view the penalties for claims suppression in Nebraska are weak. I am unaware of any times where an employer was prosecuted for claims suppression in Nebraska.

Fighting claims suppression in the civil justice system

But I am a skeptic of criminalizing workers’ compensation — which at its core is a contractual issue between an employee and their employer. My view is that employees are more vulnerable to prosecution than employers. Since workers’ compensation is stigmatized, workers’ compensation fraud by employees is viewed as a variant of welfare fraud. Welfare fraud is prosecuted aggressively in many jurisdictions.

I believe that the civil justice system is a better forum for wrongs done in a commercial transaction. But many barriers exist to employees being able to bring civil claims for workers’ compensation claims suppression by their employers. The first barrier is the fact that workers’ compensation laws are the exclusive remedy for workplace injuries. For example, in Nebraska an employee can’t bring a bad faith action against their workers’ compensation insurer because their remedy for bad faith is the penalty and fee statute under Neb. Rev. Stat. 48-125.

The employment at-will doctrine and claims suppression

A related barrier to bringing civil claims for claims suppression, is the growing reluctance of courts to allow employees to sue their employers. I believe this is because of the overwhelming power to the doctrine of the employment at-will doctrine.

Claims suppression cases are often brought as retaliation cases. Earlier this year, a federal court in Pennsylvania narrowly interpreted Pennsylvania’s prohibition on workers’ compensation retaliation to rule against an employee. That case turned on the court finding the receipt of workers’ compensation benefits wasn’t actually claiming workers’ compensation benefits, so the employee wasn’t being retaliated against when they were fired after their work injury. The court’s narrow construction of Pennsylvania’s anti-workers’ compensation retaliation is based on the importance of the employment at-will doctrine.

Arguably in cases where an employee doesn’t file a claim because of claims suppression, then a court can find the employee isn’t being retaliated against because they never filed a claim in the first place. Recognizing a civil action for claims suppression requires more legal creativity than many courts are willing to give an injured employee.

But just because bringing a claim for claims suppression is difficult doesn’t mean that some lawyers aren’t trying. The Bloomberg article quotes Paul Taylor of the Truckers Justice Center, a nationally recognized expert on retaliation claims under the Surface Transportation Amendments Act (STAA) retaliation claims. Workers’ in industries covered under the STAA could bring suppression claims under the STAA. These claims have a more favorable burden of proof for workers’ than typical civil rights claims.

The Bloomberg story also mentions cases for workers’ compensation that have been brought under California state law. But, California state law is considered to be one of the most friendly for employees in the nation. I question what weight a Nebraska court would give to a ruling made under California law.

Ultimately claims suppression will probably have to be addressed by state legislatures as workers’ compensation laws are state laws. State legislatures can increase the penalties for claims suppression and create private causes of action for workers’ compensation claims suppression by statute. If federal minimum standards for workers’ compensation get momentum in Congress, stronger anti-claims suppression laws should be part of those standards.

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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Watch your body clock and time clock for a safe and fair “fall back”

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Early last week most of us felt a little dazed and tired from the end of daylight  savings time. But will that time change lead to more injuries and some workers getting shorted on their paychecks?

The end of daylight savings time and workplace safety

Studies show that daylight savings time in the spring leads to an increase in work injuries. While no studies have been done on the end of daylight savings time, experts state that any changes to the bodies ciciadian rhythms can lead to lower concentration, which can increase the risk of work injury. In short, if you feel a little off in the days after daylight savings time, your chances of injury on the job increase.

Fatigue leads to injuries. The risk of fatigue-related injury at work tends to increase in November and December as many workers take on increased hours or second jobs during the holiday season.

The time shift and wage theft

A tweet from a high-profile New York congresswoman reminded workers who work overnight to check their paystubs as sometime computerized timekeeping records will miss time shifts. Workers in human services, transportation and retailing would be particularly vulnerable to this form of wage theft.

Proving up actual unpaid time is one of the biggest challenges for employees when it comes to wage and hour law. The United States Department of Labor has an app callled Timesheet which allows workers to monitor their own hours.  The law favors employees who bring wage and hour violations to the attention of their employers in a prompt manner.

The federal Fair Labor Standards Act (FLSA) also includes anti-retaliation provisions which protect an employee who brings up a potential wage and hour violation to their employer.

While one hour of unpiad wages would be a small amount of money, an employer would not be able to plead a de minimis defense. That defense only applies in pre and post shift activities. Workers can join together in collective action cases under the FLSA. This allows workers to join together for relatively small amounts of wage loss. But workers are forced to opt-in or affirmatively join those cases. The opt-in provision works to limit the actual damages payable in these cases. I am involved in a collective case now where about 1/10 of the eligible workers decided to opt-in.

Up until 2018, I think it would be fair to say that workers who banded to together to address unpaid wages would also be covered under the National Labor Relations Act. (NLRA) In the wake of the Epic decision, I have some doubts about whether that activity would be protected. The Epic decision also gave employers the ability to take away the right of employees to join together to sue the employer for wage violations.

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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Misclassification stymies efforts to measure cost of work injuries

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Workers’ compensation courts do more than just decide workers’ compensation cases. Workers’ compensation courts also collect information about work injuries that is public information. But what happens when workers are classified as independent contractors?

Recently three U.S. Senators found out how difficult it was to find out information about work injuries for independent contractors when Amazon refused to provide information about injuries to drivers contracted with Amazon.

In Nebraska, employers are required to report injuries to the Nebraska Workers Compensation Court and those records are public record. These reports, called First Reports of Injury, at least provide some basic information about the number and nature of injuries.

The fact that First Reports are public is somewhat controversial. Opponents of making first reports public argue the workers’ compensation court is disclosing private health information. Many also find the practice of plaintiff’s attorney using the reports for marketing purposes distasteful.

On the flip side, if insurers and employers always treated their injured workers fairly and lawfully, they wouldn’t call lawyers. Secondly the availability of information about work injuries can help legislators and other policy makers improve workplace safety.

Employer advocates may argue that employers have an incentive to make their workplaces safe because of cost. But when employers, like Amazon, make their workers independent contractors they don’t provide workers’ compensation benefits. This shifts the cost of work injuries onto workers  and society as a whole. When companies classify their workers as independent contractors it is difficult even for powerful United States senators to determine the true cost of work injuries.

State workers’ compensation courts do important work in tracking work injuries. But as readers of this blog know, workers’ compensation laws are state-based laws. What may be a reportable injury in one state might not be reportable in another state. OSHA Rules 300 and 301 create a national standard for when an injury is recordable. But a rule that would have strengthened reporting requirements under OSHA was overturned through the Congressional Review Act. (CRA)

Many rules adopted by the Department of Labor during the Obama administration were overturned through the CRA. Reporting by Mike Elk at Payday Report revealed the dithering by the Obama administration on workplace safety that allowed Congressional Republicans and the Trump administration to overturn these rules.

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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Do court rules make it harder for PTs to manage pain in workers’ compensation cases?

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Physical therapists are playing an increasing role in pain management in workers’ compensation as the prescription of opioids has been curtailed over concerns over abuse of those drugs. But at least in the Nebraska Workers’ Compensation Court, physical therapists (PTs) may not be able to meet their increased responsibilities due to their ambiguous status as experts under court rules.  

Nebraska Workers Compensation Court Rule 10 holds that the court may admit reports from physical therapists but are not required to admit those reports as expert testimony.

This ambiguity creates confusion about what a physical therapist can testify to through written report in the Nebraska Workers’ Compensation Court. If physical therapists are going to take the lead in treating chronic pain this could mean that a medical doctor would have to ratify the suggestions of a PT when it comes to treating pain for those recommendations to have any weight in the court.

Physician-ratification of functional capacity evaluation tests performed by PTs amounts to an informal requirement for the appointment of a vocational rehabilitation counselor for a loss of earning power evaluation. I’ve written about the gap or squeeze in workers’ compensation cases when injured workers can go for weeks or even months without receiving either temporary or permanent benefits. In my experience the practice of requiring doctor endorsement of FCE results delays the payment of permanent disability benefits and often burdens injured worker with additional expenses.

I believe the requirement that doctors endorse the recommendations of physical therapists would also serve to delay and make it more costly injured workers to get treatment for chronic pain recommended by physical therapists. Additional delay and cost could make pain management without the use of opioid drugs more difficult.

Lawyers for injured workers in Nebraska should not accept the practice of physician-endorsement of physical therapist reports. I had some recent success in getting a loss of earning power ordered based just on FCE results. (Feel free to contact we directly for a copy of the order) But even in that hearing I made sure that those FCE results were endorsed by a doctor.

The plaintiff’s bar should also look to the legislature or the Nebraska Workers’ Compensation Court rule making process to allow the use of PT reports without doctor-endorsement. Last year the court rejected an effort to allow physician assistants to testify by Rule 10 report by a 5-2 margin. There may be a better chance for physical therapist reports to admitted on the same basis as doctors as physical therapists are already included in the language of Rule 10.

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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How is workers’ compensation different for top draft picks?

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New Orleans Pelicans forward, Zion Williamson (The Athletic)

It’s hard to imagine an injured highly paid professional athlete as a workers’ compensation claimant. Their wealth shields them for many of the difficulties an injured worker can experience. But their experience as injured workers gives the public insight into the some of the challenges faced by injured workers.

New Orleans Pelicans forward and NBA top draft pick, Zion Wiliamson, injured his right knee in the preseason.  Here are few takeaways on the injury and its media coverage from the perspective of a workers’ compensation lawyer.

New employees are more likely to get hurt – Studies show that new employees are more likely to get hurt on the job. In this respect Zion Williamson is similar to many other new employees.  Injuries to new employees pose all sorts of issues for injured workers. How do you calculate workers’ compensation benefits? What if you have to miss time from work? Williamson likely doesn’t have those problems for a few reasons.

Average weekly wage A major issue for new employees is how to calculate the amount of their workers’ compensation benefits. Even if Williamson wasn’t making millions of dollars, this wouldn’t be a problem for him because he has an actual employment contract that states how much he is to be paid. 

Leave for the injured new employeeA typical employee at-will employee isn’t required to be granted leave until they have been employed for one year.  That assumes the employee is covered by the Family Medical Leave Act. But Williamson is covered by a contract with the Pelicans. He is also covered by a collective bargaining agreement through the NBA Players Association. So unlike the typical new at-will employee hurt on the job, Williamson likely has the time to recover from his work injury without having to worry about losing his job.

Pre-existing injuries and uncertainties over reporting – Williamson injured his right knee playing for Duke in February 2019. At least according to press reports, there is some question about the right knee injury occurred. Nonetheless, I would assume the Pelicans will pick up Williamson’s medical care through workers’ compensation.

But if you aren’t an elite-level NBA power forward and you tell your employer you aren’t sure how you hurt your knee, but you know you hurt it eight months ago, don’t be surprised if workers’ compensation doesn’t cover that injury.

On the off chance the Pelicans deny Williamson’s workers’ compensation, claim based on causation and/or the definition of accident, Williamson probably would have the money to cover his medical treatment. Most other injured workers lack that ability.

As an aside, if it was determined that Williamson’s knee injury was caused by his play at Duke, those injuries would not be covered by workers’ compensation. Eventhough the NCAA recently allowed student-athletes to make money through endorsements, they aren’t employees who are entitled to workers’ compensation.

General ignorance of workers’ compensation – I like basketball but I don’t follow it closely. I didn’t find out about Williamson’s injury until I saw an article in The Onion entitled “Pelicans HR Informs Zion Williamson Knee Surgery Not Covered Until 90 Days Into First Season.

Employers are required to carry workers’ compensation and employees are covered by workers’ compensation on their first day of work. The Onion is satire but it’s fairly typical of the misunderstanding of workers’ compensation by the media and entertainment industry. California’s Assembly Bill 5 is often described as a bill that provides sick leave and health insurance to gig economy workers. Sick leave and health insurance often aren’t required benefits, but workers’ compensation is a mandatory benefit. AB5 expands workers’ compensation to gig economy workers.

Wall Street Journal columnist Andy Kessler was griping about AB5 in a recent column. Kessler didn’t mention workers’ compensation in his column. Any pundit opining about AB5 who doesn’t understand the fundamentals of employee benefits, should be discounted or ignored.

 

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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The problem with workers’ compensation award ceremonies

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Recently three injured workers were honored at the Comp Laude Gala put on by trade publication Workers’ Compensation Central. The event included a panel with the catastrophically injured workers who overcame their injuries.

Individually the stories of these workers are all inspiring. The Comp Laude Gala should also be credited for giving these workers a place to voice their stories. Too often workers’ compensation lawyers and the insurance industry either talk to or talk about injured workers. It is good to hear their perspective.

But the idea of an event dominated by the workers’ compensation insurance industry giving awards to injured workers bothers me for two reasons — the types of injured workers recognized are atypical and focusing on individuals ignores legal and political issues that impact injured workers and workers’ compensation laws.

Award winners aren’t representative of injured workers as a whole

The Comp Laude Awards recognized workers who were catastrophically injured. Catastrophic injuries and death claims are different than your typical workers’ compensation claim in that it is less likely compensability and nature and extent of injury will be disputed by the insurer. These workers and their families are less likely to have a bad experience with a workers’ compensation insurer or claims administrator.

Catastrophic injury and death claims are more likely to involve third-party liability cases. Injured workers with a viable third-party case have a better chance of being compensated adequately than an injured worker stuck with just workers’ compensation.

In his post about the Comp Laude injured worker awards, blogger Bob Wilson classified the award winners as advocates. Other types of injured workers were either adversaries or addled types who are less likely to accept their new condition and less motivated to improve their conditions. There is some validity to these classifications. But as other observers have pointed out everyone deals with trauma differently. Heroism should not be the standard that injured workers are held to when it comes to recovery from an injury.

Maybe the industry doesn’t believe that heroism should be the standard for injured workers. But the Comp Laude awards seem to signal that workers with more mundane injuries workers’ compensation injuries that they don’t have it so bad and they should suck it up.

Ignoring the social and political context of work injuries.

Wilson pointed to two police officers who were back to work after catastrophic injuries. It takes time, usually a lot longer than the 12 weeks allotted by FMLA, to recover from a serious work injury. But police officers are usually represented by unions and union workers usually have more generous leave policies that allows them the time to recover from work injuries and return to work. Union contracts also give employees more leverage in accommodating a disability beyond what they have under the Americans with Disabilities Act. But the role of organized labor in injury recovery seems to be ignored in stories that focus on individual heroism.

Focusing on individual tales of “resilience” also diminishes the importance of injured workers and their families taking actions to change laws to improve workplace safety and workers’ compensation laws.  At least for the Comp Laude awardees, workers’ compensation laws seemed to work fairly well. But for no amount of money can replace the life of a family member killed in a work injury. The families of workers killed on the job have started organizing and advocating for workplace safety through United Support and Memorial for Workplace Fatalities (USMNF)

In the Canadian province of Ontario there is an injured workers group active in advocating for injured workers to improve workers’ compensation laws. Injured workers have also taken to protesting that provinces workers’ compensation board through the Occupy Wall Street-inspired organization Occupy WSIB. Sure Occupy Workers’ Compensation would be considered radical by Comp Laude Gala attendees and even by some plaintiff’s attorneys. But the spirit of Occupy speaks to the anger and disaffection felt by many injured workers — the so-called adversaries and addled.

Injured workers who fight for themselves and others in the political arena are advocates in the true sense. Workers’ compensation professionals, whether they represent employees or employers deal with the anger of injured workers on a regular basis. These workers don’t need lectures about mindfulness or acceptance. They need a way to channel their legitimate anger in a productive way to change workers’ compensation laws. Injured workers and their families are starting to do this across North America. Merely celebrating resilience among a select set of injured workers will not improve workplace safety or workers compensation laws.

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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