Category Archives: Workers Compensation

Caught in the TTD/PPD squeeze

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Consider these common scenarios after a serious work injury.

An injured employee is done recovering from a surgery but can’t go back to work until they complete a Functional Capacity Evaluation.

An injured employee is done recovering from a spinal fusion surgery and is unable to go back to their old job. Even if on the odd chance they could go back to their old job, they have been off work so long that any job protections available under the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) have long passed.

In both cases an injured worker is likely 1) not getting temporary total disability (TTD) 2) Is not earning wages and 3) Has not started receiving any permanent partial disability (PPD) or permanent total disability (PTD).

Some call it “the gap”, some call it “the squeeze”, but whatever you call it, it’s a painful situation to be in to not have any money coming in after a recovery from an injury.

Workers’ compensation laws in Nebraska are supposed to be interpreted in favor of the employee to effectuate the beneficent purpose of relieving employees of the economic effects of a work injury. How can employers/insurers squeeze injured employees like this?

One answer is that case law may allow this. I am going to cut and paste in the relevant language case law into this blog post in italics. I am going to bold face the language insurers rely on to squeeze injured employees.

Temporary disability ordinarily continues until the claimant is restored so far as the permanent character of his or her injuries will permit. Compensation for temporary disability ceases as soon as the extent of the claimant’s permanent disability is ascertained. In other words, temporary disability should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.

The term “maximum medical improvement,” or MMI, has been used to describe the point of transition from temporary to permanent disability.  Once a worker has reached MMI from a disabling injury and the worker’s permanent disability and concomitant decreased earning capacity have been determined, an award of permanent disability is appropriate.

The argument underlying the squeeze is that TTD ends when a doctor states you have plateaued medically, but you can’t get permanent disability until your disability has been ascertained. This could mean waiting for a permanent impairment rating or it could mean waiting for an FCE, having a doctor endorse the results and then having a vocational counselor determine disability. As Roger Moore at our office pointed out in 2015, the latter process can last months.

I think allowing insurers to exploit the gap between TTD and PPD is an incorrect reading of the law. As I pointed out earlier, it doesn’t effectuate the beneficent purpose of the Nebraska Workers’ Compensation Act. If TTD ends when disability is ascertained, doesn’t disability actually need to be ascertained through assigning either permanent impairment or permanent restrictions and/or a determination of loss of earning power before TTD payments end? Finally, if MMI signals the transition between temporary and permanent disability benefits, isn’t MMI merely the beginning of the end of temporary benefits rather than the end of temporary benefits? Doesn’t the term “transition” account for some time period when disability is being ascertained?

The temporary/permanent squeeze is an issue of great interest to me. While I think the squeeze is a misreading of the law, I am not certain a trial judge or appellate court would see things my way. The issue may have to be resolved in the Legislature, but the issue is one that should be addressed in litigation. I am one attorney who is willing to litigate the issue on behalf of an injured employee.

The offices of Rehm, Bennett & Moore, 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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Denied workers’ compensation and health insurance for a work injury? You might have a counter

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Ohio State lines up to run a QB counter against Nebraska

My colleagues Paul McAndrew from Iowa and Bernard Nomberg from Alabama have blogged about the tragic but common situation of an employee who puts a work injury on private health insurance only to have health insurance deny payment because they discover the injury is work-related.

It is another example of injured workers getting squeezed. But in the right circumstances an injured worker can squeeze back— a counter-squeeze if you will.

In Nebraska health insurance benefits are considered wages. Nebraska allows employees to receive attorney fees when they sue for unpaid wages under what is called the Nebraska Wage Payment and Collection Act.  So an employer who is denying medical benefits under workers’ compensation, should not be able to deny payment of those bills under private health insurance.

Nebraska also prohibits employers from retaliating against employees for claiming workers’ compensation benefits. Retaliation is an adverse action related to the terms and conditions of employment. Denying payment of wages, in the form of health insurance, because the employee has filed a workers’ compensation claim should be retaliation.

So employers denying workers’ compensation and health insurance benefits can find themselves facing a wage and hour and retaliation case.  Of course, these types of cases are a lot more complicated than described in the last two paragraphs.

In order for the counter-squeeze to work, it is best to have an employer who is at a minimum self-insured for the purposes of health insurance and ideally self-insured for health insurance and workers’ compensation. Tyson, Crete Carrier and Werner Enterprises are large Nebraska employers who fit into the latter category. Self-insurance is important because it allows the employee to link the decision to deny benefits to the employer. In theory you can still make a counter-squeeze work when outside insurance companies are involved, but that turns the case into a civil conspiracy case that can be more costly and difficult to prove.

Wage and hour cases also require detailed proof of medical bills and existence of a valid contract for payment of benefits. If an employee appears to have misrepresented how an injury happened, an employer may be able to fire an employee regardless of any retaliatory motive on their part. But the employee who at first blush may have “screwed up their case” by paying for their workers’ compensation injury with their private health insurance, may be able to salvage a good outcome in their work injury case.

The offices of Rehm, Bennett & Moore, 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, retaliation, Wage and Hour, Workers Compensation and tagged , , , .

Irregular shifts complicate workers’ compensation claims

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Irregular work hours, driven increasingly by automated scheduling, have lead San Francisco and Seattle to pass municipal ordinances to regulate the practice because irregular schedules make child care, transportation and working multiple jobs increasingly difficult for low wage workers.

Irregular hours also increase the risk of work injury and they can complicate the claims of injured workers.  Here are a few ways irregular working hours can impact a workers’ compensation claim:

Benefit rates

Workers compensation disability benefits are paid based on a workers’ average weekly earnings or their average weekly wage – AWW for short. But when you work 40 hours one week and eight the next, what’s your average work week? Mathematically, in this scenario the average week would be 24 weeks. An insurance company would likely use a simple average.

But under Nebraska law a court is supposed to exclude abnormally low weeks from the calculation of average weekly wage. In other words if the case is pushed into court, a Judge will exclude abnormally low weeks which would lead to a higher benefit rate.

Many employers also pay shift differential where night and weekend shifts get a higher hourly wage. Effective hourly wages can vary from week to week for employees who work irregular shifts that include night and weekend shifts.

Nebraska excludes overtime premium in general from AWW, but shift differential still counts. Sometimes insurance companies will exclude shift differentials from their calculations of average weekly wage. This is particularly true when insurers are calculating permanent disability benefits.

It is also common for workers who work irregular shifts to work less than 40 hours a week. For the sake of permanent disability benefits, Nebraska assumes a minimum of a 40-hour work week . Insurers will often not follow this rule. Irregular shift workers are not the only workers who are subjected to this practice, but when you combine exclusions of shift differential along with not using a 40-hour week, irregular shift workers can get substantially underpaid when it comes to workers compensation.

Our firm, like most other firms, represents injured workers on a contingent fee basis. The problem with that arrangement is that while an under payment of benefits may be a meaningful amount of money to an injured worker, it may not be enough for an attorney to justify taking on an underpayment claim on a contingent fee basis. Most state and federal wage and hour laws allow for fee awards that can be many times the unpaid wages. The reason for attorney fee awards in this case is the important public purpose of these laws.

Workers compensation has the same general purpose of as wage and hour laws, but in Nebraska it is difficult to get attorney fees in a disputed workers compensation case because an award of penalties requries a lack of a reasonable controversy. Conventional wisdom is that employees must show a lack of reasonable controversy to win attorney fees. However, some case law seems to distinguish the standard for winning a penalty versus winning an attorney fee.

Medical appointments

Irregular shifts also make it difficult to schedule medical appointments. This is particularly true of specialists who would be treating a more serious work injury. Missing appointments can be a red flag for judges, doctors and insurers if not explained. A good attorney can help an injured worker explain how an irregular work schedule prevented them or interfere with the. from attending medical appointments.

 

The offices of Rehm, Bennett & Moore, 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, Workers Compensation and tagged , , , , , .

What the big California worker classification case means and could mean

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The California Supreme Court made big news in the world of workers’ compensation and employment law last week when it adopted the employee-friendly ABC Test  for the purposes of California’s minimum wage law. The decision was seen as a set back for gig economy companies like Uber who classify their workers as independent contractors. 

The bigger story as pointed out by CNN Money reporter, Lydia DePillis , and widely acknowledged by attorneys and legal academics is the patchwork of different state labor laws and how they will impact the gig economy and workers. My room temperature take is that employee classification laws aren’t even consistent within states. Nebraska has adopted the ABC test for the purposes of unemployment and for our wage payment act by statute. But Nebraska imposes the more employer-friendly right of control/economic reality test by case law for the purposes of workers compensation.

Labor Secretary Alexander Acosta has called for an update of labor and employment laws to aid the gig economy. Experienced workers’ compensation attorneys may view the fight over the classification of gig economy workers as a potential threat to their practices but as essentially an old issue that has new prominence because of the rise of companies like Uber. But worker classification legislation is only part of the story about how the rise of the gig economy could change workers’ compensation laws. Advocates for injured workers need to understand how so-called “portable benefit” schemes could change workers’ compensation laws. If enacted, portable benefits laws could radically alter the grand bargain behind workers’ compensation laws. They could also provide more uniformity of laws regarding employee benefits and protections like workers’ compensation

A portable benefit is defined as a benefit that is paid into an employer-sponsored plan that can be transferred to a new employer or to an individual who is leaving the workplace.[At least when it comes to health insurance, portability has some real benefits for workers’ rights. Employees aren’t tied to a potentially abusive employer just for the sake of keeping their health insurance. Candidly any portable benefits scheme that expands health insurance coverage would also help workers who do not have health insurance. The pro-worker potential of portable benefits was recognized by the National Employment Law Project who issued a report with the Roosevelt Institute about how portable benefits could be implemented.

But other portable benefit plans developed by Washington D.C. think tanks run the gamut from the really bad to the just bad.

MIT economist Jonathan Gruber, who was influential in the design of the Affordable Care Act, wrote a paper for the Aspen Institute that proposed catch-all individual security and retirement accounts as alternatives or replacements for workers’ compensation and unemployment insurance.  Without anything in the way of attribution, Gruber breezily states that higher workers’ compensation benefit payments create a “moral hazard” which leads to more injuries and longer durations of injuries. Gruber then goes on to propose that injured workers exhaust their individual security accounts before they collect workers’ compensation benefits and that workers’ compensation benefits be subject to federal taxation. It is important to note that Gruber doesn’t limit his proposal for portable benefits to gig economy workers.

Economists Seth Harris and Alan Krueger have proposed a somewhat more worker-friendly portable benefits scheme designed for gig economy workers to be paired with a new type of employee classification between employee and independent contractor for workers in a paper did they did for The Brookings Institute. The Harris-Kruger plan would allow gig economy employers to “opt-in” to state workers’ compensation laws. But even the more worker-friendly Harris-Krueger portable benefits scheme was created mainly to reduce litigation costs for gig economy companies. Former National Labor Relations Board member and associate counsel for the AFL-CIO, Craig Becker, pointed out that creating a new class of workers may create more litigationwhen employers try to re-classify employee as a new class of worker.[5] Becker and others pointed out that this is what happened in Italy when Italy created a third class of worker that was neither employee nor independent contractor. Legislation has been introduced in California that is along the line of the Harris-Krueger plan.

Many plaintiff’s lawyers seem to, or at least want to, believe that since workers’ compensation laws were enacted under 10th Amendment police powers then workers’ compensation laws are a matter of “state’s rights” and so-called federalization is uncalled for and unconstitutional. Congress has broad authority under its taxing power to effect economic activity that is beyond even the broad scope of its power to regulate individual commerce. The individual mandate of the Affordable Care Act was found to be constitutional under congressional taxing authority even though the mandate exceeded congressional authority to regulate interstate commerce. Recently passed changes to tax law have encouraged workers to take independent contractor status.

Besides workers’ compensation, the other mandated benefits that stem from the employee-employer relationship — unemployment, Medicare and Social Security — are all effectuated in whole or in large part through federal taxes. If a portable benefits are implemented on a nationwide basis, it will likely happen through the tax code and they could be enacted in a constitutionally valid way. Any discussion about the impact of the gig economy on worker classification laws should include discussion about portable benefits proposals.


 

The offices of Rehm, Bennett & Moore, 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 Constitutional law, worker classification, Workers Compensation and tagged , , .

Compstitutional Law 101: Part 2: Will Sveen signal a move to judicially dismantle the “grand bargain”?

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Watch out for what these three could say in Sveen v. Melin

WILG is hosting a summit on the constitutional challenges in workers’ compensation on April 18th, I won’t be able to attend, but this post and my last post are my contribution to this ongoing discussion.

Stating that “a seemingly obscure case could have far-reaching implications” is one of the most overused clichés in legal blogging and journalism.  But a case involving a dispute over the proceeds of a life insurance policy might impact the constitutional basis for workers’ compensation and other state laws protecting employees.

In March, the Supreme Court heard oral argument in Sveen v. Melin (paywall). In Sveen, a former spouse was challenging a Minnesota law automatically removing a spouse as beneficiary of an insurance policy upon divorce. The grounds for the challenge is the so-called contracts clause of the United States Constitution which prohibits states from passing laws that impair the obligation of a contract.

Pro-corporate legal commentators have long lamented the demise of the contracts clause at the expense of laws enacted by states under 10th Amendment police powers. When these pundits and academics write about a “contracts clause revival”, they are really writing about diminishing the rights of states to enact laws under their police powers.

One of the most important set of state laws enacted under police powers are workers’ compensation laws. In New York Central Railroad v. White  state workers’ compensation laws were found to be constitutionally enacted under a state’s 10th Amendment police powers.  State laws regulating workplace safety and the ability to injured employees to seek legal redress were one of the primary drivers for the broad recognition of police powers in the late 19th century. A good discussion of the background behind the expansion of state police powers is found in the 1898 Supreme Court case of Holden v. Hardy.  In short, the Supreme Court found that state workplace safety laws were a response to the new industrial economy of the late 19th century and valid exercises of state police powers.

University of Chicago Law Professor Richard Epstein argued that minimum wage laws violated the contracts clause.  It’s not much of an intellectual stretch to argue that mandatory workers’ compensation laws would violate the contracts clause using Epstein’s interpretation of the contracts clause. A gig economy employer like Uber subjected to a state workers’ compensation law might argue that they should not be subjected to such a law under the contracts clause.

On April 2nd the Supreme Court reversed 70 years of precdent in narrowly construing exceptions to the Fair Labor Standards Act in the Navarro case. Navarro will likely have the effect of pushing plaintiffs to file more wage and hour cases under state laws. A revived contracts clause could cut off or curtail opportunities for justice for victims of wage theft in state court.

A potential contracts clause revival should concern advocates for injured workers for other reasons. In recent years, attorneys for injured workers have had a fair amount of success in overturning anti-worker changes to workers’ compensation laws based on state constitutions. That avenue would likely be blocked with a full-blown contracts clause revival.

In the late 19th and early 20th century, state laws regulating workplace conditions were struck down under 14th Amendment substantive due process. But substantive due process also allows claims for a broad variety of civil rights that are disliked by judicial conservatives, so the substantive due process clause is disfavored by courts.  The contracts clause allows courts to strike down worker-friendly state laws without creating a mechanism for expanding rights for suspect classes of individuals like prisoners or victims of police brutality. In New York Central v. White, the Supreme Court considered and rejected arguments overturning workers’ compensation laws on substantive due process grounds and contracts clause grounds.

Finally, a broad interpretation of the contracts clause would allow the Supreme Court to overturn state workers’ compensation laws while still maintaining the narrowed interpretation of interstate commerce the Roberts court appear to be endorsing in NFIB v. Sebelius. As I wrote in a post last week, a narrow construction of the commerce clause could be a high hurdle in enacting worker-friendly chagnes to workers’ compensation laws on a federal level.

Sveen v. Melin will likely be decided this spring. If the Supreme Court strikes down the Minnesota law based on the contracts clause, I will be interested to read the language of the opinion. I will also be interested in reading any concurring opinions from hard core conservatives like Gorsuch, Thomas and Alito as those opinions could be a clue as to where the court could be going on contracts clause jurisprudence. It is unlikely that Sveen v. Melin will be grounds to invalidate state workers’ compensation laws. Supreme Court decisions are limited to actual cases and controversies that are presentd to them. But Sveen could be another step in undercutting New Deal and Progressive Era refroms.  The Supreme Court has been chipping away at New Deal era laws in cases like Navarro and the Tackett decision in 2015. A bad decision in Sveen might accelerate the rollback of pro-worker laws.

The offices of Rehm, Bennett & Moore, 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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Compstitutional Law 101: Part 1: Air ambulance cases call into question federal role in workers’ compensation

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Air ambulances are crucial to seriously injured people in rural areas

WILG is hosting A Constitutional Challenges Summit on April 18th in Washington D.C. I won’t be able to travel to the event, but this post and my next post are my contribution to this important disucssion.

Two seemingly obscure court decisions (sorry for the cliché) involving payment of air ambulance bills in workers compensation cases raise big questions about the role of federal law in traditionally state-based workers compensation laws.

Thomas Robinson, editor of the leading treatise on workers’ compensation laws, summarized Texas state court and 10th Circuit Court of Appeals decisions  invalidating Texas and Wyoming laws that held that air ambulance bills for workers hurt on the job should be paid under workers’ compensation fee schedules. Both courts held that since air taxis are regulated by the Federal Aviation Act, that federal law would preempt state workers’ compensation acts.

Many lawyers who specialize in workers’ compensation are skeptical of federal intervention in workers compensation. In the world of workers’ compensation so-called “federalization” is often viewed negatively. Robinson worried that the “wall” against federal intervention in the workers’ compensation system was not strong enough and wondered if there were any barriers to federal intervention in state-based workers’ compensation laws.

Anybody who reads this blog on a regular basis knows that I am a skeptic of those are who skeptical of federal intervention in the workers’ compensation system. My fundamental gripe with the “state’s rights” crowd is that workers compensation laws were enacted in the 1910s when a very pro-business Supreme Court used a narrow definition of interstate commerce to limit the power of the federal government to regulate the workplace. Workers’ compensation laws had to be enacted under state law through their 10th Amendment police powers.  But the power of Congress to regulate interstate commerce was expanded by the Supreme Court in the New Deal era which allowed the federal government to mandate matters such as wages and workplace safety.

So when Robinson asked if there were any barriers to federal intervention in state workers’ compensation laws, my first reaction was to say no. But the more I looked at the issue, the more I question that reaction.

Robinson described the wall against federal intervention in state workers’ compensation laws as the McCarran-Ferguson Act.  McCarran-Ferguson, passed in 1945, gives the states to regulate “the business of insurance” “without interference with from federal law unless federal law specifically provides otherwise. Since workers’ compensation is at heart an insurance scheme, McCarran-Ferguson provides a barrier against federalization of workers’ compensation.

McCarran-Ferguson was enacted primarily in response to Untied States v. South-Eastern Underwriters a 1944 decision which held that insurance contracts were interstate commerce. Southeastern Underwriters overturned roughly 80 years of precedent that insurance contracts were not interstate commerce because insurance contracts, even if involving interstate parties, were not actually commerce.

The issue of what constitutes commerce figured prominently in NFIB v. Sebelius, the 2012 case upholding the individual mandate in the Affordable Care Act. In that case, the individual mandate was upheld as constitutional based on the federal power to tax rather than the power to regulate interstate commerce. Much of the same reasoning found in the dissenting opinion in Southeastern Underwriters about what constitutes commerce was found in Chief Justice Roberts’ analysis of the commerce clause in NFIB v. Sebelius. According to Roberts, requiring a person to buy health insurance or any product did not constitute commerce, so Congress cannot enact such a requirement under its power to regulate interstate commerce.  Justice Roberts expressly rejected a cost-shifting argument made in support of the individual mandate being constitutional under the commerce clause.  Supporters of federal minimum standards for state workers’ compensation laws, like me, argue that deficient state laws shift the costs of work injures onto the taxpayers and/or the worker themselves

But under the reasoning in NFIB v. Sebelius, a cost-shifting argument in favor federal standards in workers compensation could run into tough questioning from the Roberts court if power to enact those standards is based on the commerce clause. In view of NFIB v. Sebelius, I believe the air ambulance cases are narrow exceptions to the federal deference to state law in matters of workers compensation.

But I believe state laws regarding workers compensation are subject to indirect federalization through constitutionally-favored tax legislation. In the recently passed tax bill, workers were given incentives to declare themselves independent contractors. As evidenced by NFIB v. Sebelius, the Roberts court seems more inclined to find laws constitutional under taxing authority than the interstate commerce clause. 

Gig economy companies and their lobbyists are pushing for legislation like the NEW GIG Ac t (10) which allows companies to use the tax code to classify workers as contractors without running into legal trouble. For the foreseeable future, I believe the so-called federalization of workers’ compensation will take place in fights about tax law.  The sad fact for employee advocates is that laws enacted under the taxing authority of the federal government are likely to be upheld as constitutional. Unfortunately, any worker-friendly reforms made at a federal level would face a skeptical audience with the Roberts court if they were enacted through the interstate commerce clause.

The offices of Rehm, Bennett & Moore, 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 Constitutional law, preemption, Workers Compensation and tagged , .

Proposed Changes To Iowa Workers Compensation Cruelly Target Elderly Employees

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elderly employeeAnti-worker changes could be coming to Iowa workers compensation. To me the cruelest reform would be the proposal to end permanent total disability benefits at age 67 and limit workers who are over 67 who become permanently and totally disabled to 150 weeks of benefits. One memorable client of mine demonstrates the callousness of the proposed Iowa reforms.

My client Doris Newkirk was 83 years old when she was injured working as a hostess at Lone Star Steakhouse in west Omaha in June 2006. She was near a bathroom door when a large male co-worker came barreling into the bathroom and caused Doris to fall back and injure multiple parts of her body. Like many retirees, Doris worked because she needed the money. After her injury she was unable to work. Fortunately Doris was able to receive permanent total disability benefits to make up for the income she lost because she wasn’t able to work. Those permanent benefits started in September 2007 and continued for five years and 10 ½ months until her death on July 21, 2013.

If Nebraska law limited those injured over the age of 67 to 150 weeks of permanent total disability benefits, Doris wouldn’t have been paid anything for the last three years of her life. To her credit, Doris travelled from Omaha to Lincoln in her late 80s to testify against similar legislation when it was proposed in Nebraska. According the Business and Labor committee clerk at the time, the state Senator who introduced the bill at the behest of insurance interests made a motion to kill the bill after listening to her testimony.

Workers compensation is a cost of business. But according to CNBC, Iowa has the second lowest cost of doing business in the country. Iowa, like Nebraska, generally ranks well in national surveys of business climate. Iowa’s weakest area when it comes to business climate,  according to CNBC, is quality of workforce. Unlike Nebraska, Iowa lacks vocational rehabilitation for injured workers. If Iowa is looking to reform its workers compensation system, they should consider investing in vocational rehabilitation so injured workers can fully regain their ability to contribute to the economy in Iowa.

The offices of Rehm, Bennett & Moore, 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 Elder Law, Employment, employment law, Iowa, Nebraska, Workers Compensation and tagged , , .