Category Archives: Workers Compensation

Nebraska leads on first responder workers compensation benefits, but needs to do better

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The words “Nebraska” and “ahead of the curve” aren’t often used together. But when it comes to mental-mental workers compensation benefits for first responders, Nebraska has been well ahead of states like Florida, Washington and Oregon in providing those benefits.

Thomas Robinson, the author of the leading treatise on workers’ compensation, recently published an article summarizing recent state legislation expanding mental-mental benefits to first responders. Mental-mental workers’ compensation injuries are mental distress injuries not related back to a physical injury.

Nebraska first created mental-mental workers’ compensation benefits for first responders in 2010. The benefits were made permanent in 2012. In 2017 the benefits were expanded to prison guards and other state employees who work with high-risk individuals. Nebraska was well ahead of Florida, Washington, Connecticut, Oregon, New Mexico and Idaho which only recently expanded mental-mental workers’ compensation benefits to first responders.

Many first responders in Nebraska are volunteer firefighters. Those volunteers aren’t paid wages, but they are still covered by workers’ compensation in Nebraska. The coverage includes benefits for permanent and total disability.

I agree with Robinson’s arguments questioning the constitutionality of giving mental-mental workers’ compensation to first responders but not all workers. Robinson uses the example of truck drivers. I’ve written frequently about  the violence that low paid retail workers are exposed to in their work.

Workplace violence struck close to our office last week when a local man rammed his truck through the window of a Chick-Fil-A near Southpointe Mall in Lincoln. The man was armed with a stun gun and was shot by a sworn officer who reportedly driving through the drive-in. Under Nebraska law, the Chick-Fil-A employees could not make a workers’ compensation claim solely for mental distress. The officer would have a stronger argument for mental-mental workers’ compensation benefits.

I also agree with Robinson that teachers deserve mental-mental workers’ compensation benefits. The recent passage of mental-mental workers’ compensation benefits was partly motivated by a response to various high-profile school shootings. Other responses to school shootings have been less helpful. In April I wrote about work injuries sustained by teachers in Indiana during a mass shooting drill. In that injury a teacher was shot “execution style” with a paintball gun. The union representing teacher’s in Indiana drew attention to this incident in legislative testimony about school safety. That is one example of how unions help improve workplace safety.

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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New law eases receipt of death benefits for foreign dependents

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Last week we wrote about legislation that will go into effect on September 1 that will make it harder to collect medical debt related to a workers’ compensation claim. On the same day, legislation will go into effect that will make it easier for the families of foreign workers to collect benefits for workers killed on the job.

The new law amends Neb. Rev. Stat. 48-122 to streamline the ability for a foreign dependent to proceed with litigation on behalf of a deceased family member. In other words, if a family member dies in a work accident, but his/her family does not live in the United States, the foreign dependent is able to collect workers’ compensation benefits for the death. In the past, however, in order to proceed with litigation, the dependents and their lawyer would need to get approval from a foreign consul of the country where the dependents lived. This was difficult and cumbersome to get feedback from a counsel that had little to nothing to do with a Nebraska workers’ compensation claim. The process could be even more difficult for Cuban nationals whose country doesn’t have diplomatic relations with the United States

As a result, this statute was amended so that a lawyer may simply proceed to represent the foreign dependent even if the foreign consul does not consent or fails to respond to the request for consent to the representation and litigation. The only potential pitfall to this bill is that there is a potentially expensive bonding requirement. But our firm has experience with setting up conservatorships that could help get around the bonding requirement,

The collections bill and foreign dependents bill both passed as part of LB 418 that passed the Legislature 35-0. Our firm was happy to work on this legislation, but this legislation was largely passed because of the outcome of the 2018 Legislative elections.  Senator Cavanaugh, who sponsored the bill won a close election. Due to the election outcome, Sen. Matt Hansen of Lincoln was also elected to chair the Business and Labor Committee that handles most legislation related to workers’ compensation. Senator Hansen’s leadership was helpful in getting passing this legislation.

A legislature friendly to workers is no guarantee in 2021. Worker-friendly Kate Bolz will be term-limited out in a district that isn’t particularly friendly for workers in southeast Lincoln. Grand Island Senator Dan Quick, a union electrician who was hurt at work, could face a tough re-election challenge. Pay attention to state legislative races, support pro-worker candidates, vote and tell your friends and family to vote as well.

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, Workers Compensation and tagged , , .

How workers’ compensation policy makers should respond to the threat of recession

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Fears of a recession emerged recently as long-term interest rates dropped below short-term interest rates leading to a so-called inverted yield curve.

This is Nebraska Workers’ Compensation Watch not CNBC, so I’m not going to play Mario Bartirehmo and go into the why and how of the inverted yield curve or make economic forecasts. (Blogger Joe Paduda wrote a good post about how a recession could impact workers’ comp. if you want to read about that sort of thing.)

Instead I will write about how workers’ compensation policy makers and regulators should respond to the threat of a recession and lower long-term interest rates.

The importance of state regulation

Workers’ compensation is first and foremost a form of insurance. Insurance is regulated at the state level. (You can read about the why of that here) In Nebraska, workers’ compensation insurance is regulated by the Department of Insurance and the Nebraska Workers’ Compensation Court. State regulators and lawmakers need to be doing two things to protect injured workers in any future recessions.

Preserve Guaranty funds – Guaranty funds pay out for claims from insolvent insurers. In Nebraska insurance companies need to pay into a guaranty fund. Insurance companies are financial institutions who make their money by collecting premiums and investing those premiums. In a recession, those investments can go bad. If bad investments lead to insolvency, a guaranty company can pay out claims from an insolvent insurer. Even if the economy doesn’t tip into a recession, low interest rates can lead to bad investment decisions and create problems for financial institutions like insurance companies.

The problem with guaranty funds is that politicians like to use them to balance state budgets instead of cutting programs or  raise taxes. A quick Google search reveals that such bi-partisan paragons of fiscal responsibility such as  Montana Governor (and Democratic Presidential Candidate) Steve Bullock and former New Jersey Governor (and former GOP presidential candidate) Chris Christie raided guaranty funds to balance state budgets. Cutting a workers’ compensation guaranty fund is essentially cutting benefits if the fund can’t pay legitimate workers’ compensation claims.

Strict scrutiny for self-insureds: Nebraska allows companies to self-insure for workers’ compensation. NWCC Rules 70-76 spell out the rules for self-insurance. The rules require yearly approval of for self-insurance and only a small number of employers are self-insured. I am not aware of a guaranty fund for self-insureds in Nebraska. Nebraska Workers’ Compensation Court rules requires a showing of financial responsibility in order to self-insure which should give workers’ some reassurance. But in the worst case scenario an injured worker would become a creditor in a bankruptcy proceeding if a self-insured went bankrupt.

The challenge of high deductible insurance – Financially unstable companies tend to have high deductible insurance for workers’ compensation. Those companies are more vulnerable to bankruptcy. In those cases, as Iowa law firm Gilloon, Wright and Haeml points out on their blog, insurance companies may want to delay payment until the bankruptcy is settled. Injured workers should retain counsel to preserve their rights in that situation.

Settlement value and interest rates

Last year I wrote how Nebraska’s mandated 5 percent discount rate lead to the undervaluing of permanent total disability claims. Long-term interest rates are good measure about the safe return on a long-term investment. The higher those rates the less an insurance company needs to put aside in order to meet their obligation to pay out an award of permanent total disability. The lower the rate of return the more they need to set aside to meet that obligation.

Traditionally the Nebraska workers’ compensation court would approve the settlement of litigated permanent total disability claims for 80 percent of the present value of the claim. In the last few years, the court has not been willing to follow the 80 percent rule. I suspect the difference between long-term interest rates and the mandated 5 percent discount rate is part of the reason that the court won’t follow that custom.

In the wake of low interest rates, the United Kingdom lowered their settlement discount rate. I believe jurisdictions in the United States need to follow suit. Long term interest rates have reached a historic low and are even negative in many countries. A 5 percent discount rate doesn’t make sense in these economic conditions.

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, Workers Compensation and tagged , , , .

The why and how of injured workers’ can protect themselves from debt collectors in Nebraska

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Two important and helpful changes to the law for injured workers and their family will take effect on August 31, 2019. One change could protect injured workers’ form debt collectors. The other change will make it easier for dependents of foreign workers who were killed at work.

Today we will write about the collections bill and next week we will post about the foreign dependents law.

The law amends Neb. Rev. Stat. 48-1,108 by prohibiting a collection agency from attempting to collect a debt if there is a case pending in the Workers’ Compensation Court and the debt is alleged to be subject to payment under a work comp injury. Nebraska has gained national infamy for aggressive debt collection practices, so this legislation provides much needed relief for injured workers.

What this means is that lawyers can assist in getting collection agencies to halt collection of medical bills that are related to the work accident and injuries. This is extra important for injured workers because often they may not be able to return to work, and if their work comp claim has been denied, it often isn’t even possible to pay the bills that the employer should have to pay in the first place.

How does the bill work? Once an injured worker is billed for treatment, he/she should contact his lawyer if that bill has not been paid. Then, the lawyer representing the injured worker must provide the collection agency with notice of the pending workers’ compensation claim. The notice must be provided, in writing, to the provider or collection agency. The initial notice must contain the provider’s name, the injured worker’s date of the injury, a description of the injury and the filing date/case number of the pending case in the Workers’ Compensation Court.

In that same notice, or within another thirty days, notice should also be given that identifies the specific debt that is related to the workers’ compensation claim. In other words, the collection agency must be able to know what bills are potentially related to the work comp claim that way they can still continue to pursue collection on any unrelated debts.

The notice must be made by personal delivery, first class mail, or by another method otherwise agreed to. What “any other method” means is that likely the parties will agree that notice via email will be enough for purposes of the statute. Once notice is received, any collection lawsuits will be stayed (halted) until the workers’ compensation claim has been finalized.

The law requires that a workers’ compensation case actually be filed in the Nebraska Workers’ Compensation Court. While an injured worker can proceed pro se or without a lawyer, the employer will likely have an attorney, so injured workers should at least consult with an attorney,

The collections bill and foreign dependents bill both passed as part of LB 418 that passed the Legislature 35-0.   Our firm was happy to work on this legislation, but this legislation was largely passed because of the outcome of the 2018 Legislative elections.  Senator Cavanaugh, who sponsored the bill won a close election. Due to the election outcome, Sen. Matt Hansen of Lincoln was also elected to chair the Business and Labor Committee that handles most legislation related to workers’ compensation. Senator Hansen’s leadership was helpful in getting passing this legislation.

A legislature friendly to workers is no guarantee in 2021. Worker-friendly Kate Bolz will be term-limited out in a district that isn’t particularly friendly for workers in southeast Lincoln. Grand Island Senator Dan Quick, a union electrician who was hurt at work, could face a tough re-election challenge. Pay attention to state legislative races, support pro-worker candidates, vote and tell your friends and family to vote as well.

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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Workers compensation in a new “Lochner era”

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Last week I wrote about a 4th Ciicruit Court of Appeals decision, U.S.v Hill,  that upheld a federal hate crime conviction of an Amazon employee who assaulted his co-worker because he believed the co-worker was gay.

That post focused on how workers’ compensation laws could apply to a violent hate crime on the job. But in the big picture, Hill is an important case beause of its disucssion of the interstate commerce clause. The commerce clause is important to many areas of law including workers’ compensation

The Constitution gives Congress power to regulate commerce between states. The federal role in regulating interstate commerce has been argued in the federal appellate courts for nearly 200 years. The 4th Circuit does a good job of summarizing those arguments in U.S. v. Hill. (If you are lawyer or law student with a long flight coming up you can read the Lopez and Morrison decisions for even more background)

Workers’ compensation laws were enacted in the early 20th century when there was a relatively narrow definition of what constituted interstate commerce. Therefore Congress couldn’t enact general workers’ compensation laws, states had to enact workers’ compensation laws for them to be constitutional.

But the definition of interstate commerce was broadened in the 1930s during The New Deal. That broader definition of interstate commerce allowed Congress to enact the Occupational Health and Safety Act in the 1970s. That broad definition of interstate commerce also underlined federal efforts to impose minimum standards on state workers’ compensation laws. The threat of federal intervention in the 1970s and 1980s actually lead to states making their workers’ compensation laws more generous to employees. This stands in stark contrast to pro-corporate “reforms” that started in the 1990s once threats of federal intervention receded.

Federal hate crime laws are also based on relatively broad readings of the interstate commerce clause. The 4th Circuit broadly read the interstate commerce clause in the Hill case. But starting in 1995 with afore mentioned Lopez case, the Supreme Court has effectively narrowed the reach of the interstate commerce clause without formally overturning New Deal and post-New Deal case law broadly interpreting interstate commerce clause. The trial court and disenting judge in the 4th Circuit relied on that narrow reading of the commerce clause in Hill.

If you read the 4th Circuit’s and trial court decision in U.S. v. Hill along with Lopez and Morrison, most people would agree that the Supreme Court’s law on interstate commerce is a jumbled mess. The last time workers’ compensation laws were broadly improved on a national basis it happened under the threat of federal intervention. Employers likely wouldn’t have been able to challenge federal intervention in the 1970s or 1980s based on the interstate commerce clause. I’m much less sure of that in 2019. If workers’ advocates want federal intervention to improve state workers’ compensation laws, they may need to find other ways to make that intervention pass constitutional muster.

Lawyers who represent injrued workers tend to be skeptical of “federalization.” We have our reasons. Federal law can create serious hassles for medical charges related to air ambulances, negotating insurance liens under ERISA and Medicare Set Asides are a persistent headache as well.

But while federal law can cause hassles for injured workers and their lawyers, states gutting workers’ compensation laws is an a direct and existential threat to the well being of injured workers and their attorneys. The threat of federal intervention in state workers’ compensation laws in the 1970s and 1980s meant that workers’compensation plaintiff’s lawyers didn’t have that ever present sense of dread about the future of their practice.

Trial lawyers have had some luck fighting back against workers’ compensation reforms in state courts. But relief from the federal courts seems to be less likely. University of Michigan law professor Sam Bagenstos published a law review article about a return to the so-called Lochner Era when it comes to labor and employment law. This means case law will tend to favor employers. The Supreme Court’s interstate commerce clause decisions seem to algin with  Lochner era. Ultimately, appellate courts probably aren’t going to preserve let along substantially improve workers’ compensation laws. Those improvements will have to be made in the political arena.

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 Constitutional law, Workers Compensation and tagged , , .

Can a hate crime be a workers’ comp. claim?

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Why would a blog entitled “Nebraska Workers’ Compensation Watch” post about a federal criminal case in Virginia?

What drew my attention to the 4th Circuit’s decision in U.S. v Hill was that involved two things relevant to workers’ compensation: 1) a workplace assault and 2) a discussion of the interstate commerce clause. I will write about the workers’ compensation issues arising from hate crimes on the job today and post about the constitutional law issues on Monday.

Factual background

Hill assaulted a co-worker in at an Amazon warehouse in Virginia because he perceived him to be gay. Hill was charged under federal hate crime laws. He was ultimately convicted by a jury, but his conviction was overturned by the trial judge who found federal hate crimes statute violated the interstate commerce clause. The 4th Circuit Court of Appeals reversed the trial court’s decision. (You can read a better summary of the Hill case in a blog post written by New York civil rights attorney Eric Lesh. I wouldn’t have known about the case without seeing his post on Twitter.)

Can a hate crime on the job be a workers’ compensation case?

The answer to the question depends on your jurisdiction. Not every injury to an employee during work hours or on company premises is necessarily covered by workers’ compensation. The injury has to arise from an employment risk. In Nebraska, an injury incurred from a workplace assault is compensable if it is at least facilitated by work, but it is not compensable if it is related solely to personal reasons.

I believe a hate crime at work, could be a close legal case. Arguably a bias crime would be motivated by personal reasons not related to work. On the flip side, a hate crime arguably isn’t motivated by anything thing else than a status they could share with millions of people. A racist, bigot or homophobe just wants to target someone belonging to a group they dislike.  if work facilitates that targeting, then the hate crime should arguably be covered under the Nebraska Workers’ Compensation Act.

The practical problem with a legal case for an injured workers is that it gives a workers’ compensaiton insurer a reason to deny a claim. This means that a hate crime victim assauted at work would be stuck paying for medical expenses out of pocket depedning on what type of health insurance they have or whether they even have health insurance.

Fortunately in the Hill case, the injured employee didn’t appear to miss much work. The dark cloud to that silver lining is that if the employee was stuck with a medical bill an attorney may be reluctant to take their csse if there isn’t a chance of monetary recovery in the way of temporary or permanent disability.

Physical assaults can also lead to mental trauma. Most states, including Nebraska, allow so-called physical-mental claims when a mental injury stems from a physical injury. In practice, mental injuries can be difficult to quantify if an injured employee has returned back to work. The difficulty of valuing mental injuries could discourage attorney involvment in a workers’ compensaiton case involving a hate crime.

I believe states should pass laws creating a presumption of compensability if an employee is injured on the job as part of a hate crime. Such a presumption would make it less likely that hate crime victims would be stuck with medical bills as a result of a violent hate crime in the workplace. A presumption would also encougage employers to try to prevent violent hate crimes in the workplace. In that regard workers’ compensation laws would work hand-in-glove with occupational safety laws like OSHA and state and federal civil rights laws.

A hate crime in the workplace could also be an employment discrimination case in certain circumstances. This is important because often times when an employee is the victim of an assault from on the job they could be forced to chose between a workers’ compensation case and a tort case under the so-called exclusive remedy of workers’ compensation. But an employee could recover in workers’ compensation without effecting their right to collect on a workplace harassment case. Any criminal sanction against the assailant would also have no effect on a workers’ compensation claim.

Federal hate crime laws only apply in states without hate crime statutes or hate crime statutes that address a bias crime. There was federal jurisdiction in Virginia because, Virginia’s hate crime legislation does not cover sexual orientation. Nebraska law does cover sexual orientation, so an on the job hate crime motivated by sexual orientation would not be a federal criminal case.

Hate crimes laws are like workers’ compensation laws in that they tend to be state specific. The reason workers’ compensation laws are state specific is related to how the Supreme Court interpreted the interstate commerce clause when workers’ compensation laws were enacted. I will discuss this issue more in depth in my next post. 

 

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 interstate commerce, Nebraska, Workers Compensation and tagged , , .

Still getting medical bills after going to court and winning a workers’ compensation case?

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Getting a collection notice for a bill that was ordered to be paid by a judge is like a bad horror movie sequel

How can an injured worker go to trial, have the court order payment of disputed medical bills, have their employer pay the bills they were ordered to pay, but still be receiving medical bills? It’s like a horror movie or franchise where you think the villain is dead but keeps coming back to life.

Here’s the why and how it can happen in Nebraska.

Neb. Rev. Stat. 48-120(8) allows the court to order that an employer can pay bills through the so-called fee schedule or that employers reimburse other payors. Those payors are either the injured worker or a health insurer that paid a bill that was part of the workers’ compensation case.

Recently I encountered a situation where the court ordered the employer to reimburse a health insurer who had paid some bills in a disputed workers’ compensation case. The employer paid the health insurer, but then the health insurer decided that since the expense was related to a work injury that they could reverse the payment they made to the provider originally.

So, the medical provider attempts to collect the balance from my client. My client was confused and upset because they were getting collection notices for a case where the court had ordered that medical bill to be paid.

What is the solution for the client in this situation? In Nebraska the most leverage a plaintiff would have would be the penalty and fee provisions under Neb. Rev. Stat. 48-125. Once the employee gets the bill, thy should send to their attorney who will put the employer on notice that the medical bill remains unpaid after it was awarded. That puts the onus on the employer to pay within 30 days or be subject to an award of attorney fees under 48-125.

Medical providers and third-party payors don’t have standing to litigate in the Nebraska Workers’ Compensation Court, so I question whether the Nebraska Workers’ Compensation Court would have jurisdiction over them or what relief it could order against them even if it did.

The employee could have a case directly against their health insurer for breach of contract. Since health insurance payments are wages under the Nebraska Wage Payment and Collection Act, there could be a cause of action under that law as well. But in a case of relatively small-time graft by a health insurer, it might not be worth an attorney’s time or even filing fees to bring a case.

The best prevention for this situation would be to have the court order that bills be paid directly to the provider under the fee schedule. But there isn’t any Nebraska case law about when to pay bills under the fee schedule or when a payor should be reimbursed. I’ve had employers balk at being asked to pay at the fee schedule rate rather than to reimburse a third-party payor. In cases involving Medicare and Medicaid the reimbursement rate is generally much less than the workers’ compensation fee schedule rate, so paying at the fee schedule means the employer pays out more.

Injured workers’ may also want the faster reimbursement afforded to them when the court orders an employer to pay them back for any out of pocket medical expenses. If bills are paid under the fee schedule, then medical providers have to reimburse other payors. This can delay repayment and unscrupulous providers may try to pocket payments or double bill workers compensation and health insurance and/or the injured worker.

In the last legislative session, Nebraska passed bills that going forward will limit the ability to collect medical bills that are related to a workers’ compensation claim. However those protections only extend throhg final adjudication of a case. In a case where a health insurer reversed payment to a provider when they had been reimbursed through workers’ compensation after an awarded case, a provider would be free to collect an unpaid balance.

 

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, Workers Compensation and tagged , .

Legislation seeks to prevent heat-related deaths on the job

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Reps. Raul Grivjala (D.-Ariz.) and Judy Chu (D.-Cal) introduced federal legislation that would mandate OSHA  standards for workers exposed to high heat as well as mandating paid cooling breaks, access to water and training to recognize heat stroke.

The Asuncion Valdiva Heat Illness and Fatality Prevention Act is named after a California worker who died after picking grapes for ten hours in 105-degree heat and modeled after a California law passed by Rep. Chu when she served in the California legislature.

Fortunately, deaths and injuries from heat exposure are covered by workers’ compensation in Nebraska. This can even be true if heat causes a heart attack where there is a heightened standard for causation. But compensation in workers’ compensation cases is limited and no amount of money can replace the life of a family member.

Nebraska recently experienced nasty heat wave that is still effecting most of the country. While agricultural production in Nebraska is more capital-intensive than in states like Arizona and California, many workers are still vulnerable to heat. The first to come to my mind would be residential construction workers building new houses in shade less subdivisions.

Climate change is expected to raise average summer temperatures in Lincoln, Nebraska by 5.5 degrees Fahrenheit by 2050 and by 11 degrees by 2100. Heat will be an even larger occupational risk than it is today.

Chicago experienced a heat wave in 1995 that killed 749 people. This little remembered natural disaster could be a precursor for more heat-related health problems and deaths in the future and the need to take precautions. The Chicago heat wave of 1995 shows how northern and cold weather areas could be particularly vulnerable to risks from climate-change induced heat waves. Federal legislation about heat standards on the job would be one precaution.

I would urge everyone to contact their elected representatives to support the Asucnion Valdiva Act. Nebraska’ legislators lo like to tout the value of manual labor as a way for young people to build character. But building character shouldn’t mean sacrifcing safety. I also believe that Nebraska should adopt a state law version of the Asuncion Valdiva act.

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, Workers Compensation and tagged , .