Category Archives: Workers’ Compensation

Free to work where you want, but not free to claim workers’ compensation where you want

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Americans enjoy the freedom to travel, live, work and enter into contracts throughout the United States. But when an employee is injured on the job they are often forced to claim workers’ compensation benefits in a distant and or unfamiliar state.  

Article IV of the United States Constitution explains this dilemma for injured workers. But Article IV may allow some employees to be more fairly compensated for their work injuries as well.

The privileges and immunities clause

Article IV, Clause 2 of the Constitution, the so-called privileges and immunities clause, gives Americans the right to freely travel, work, contract and buy property in any state without discrimination by state governments.

But states are allowed to discriminate some based on laws enacted for the health and welfare of its citizens enacted under their 10th Amendment police powers. Workers’ compensation laws are enacted by states under their 10th Amendment police powers. This means that states can decide which employers and employees are subject to their workers’ compensation laws.

In practical terms, this often means injured workers are forced to claim workers’ compensation benefits in a state where they don’t live. Fortunately states cannot discriminate against non-residents when it comes to access to courts. But if the privileges and immunities clause guarantees equal access to state courts regardless of state citizenship, is it constitutional to force someone to travel thousands of miles to pursue a workers’ compensation case? Arguably it’s not. It’s arguably also unconstitutional to deny a workers’ compensation claimant the right to a video or telephonic hearing if they are required to incur heavy travel expenses.

Full faith and credit clause and workers’ compensation

Article IV, Clause 1 requires states to give full faith and credit to the judgments of other states. In some circumstances this means that an injured workers can only claim and collect workers’ compensation benefits in one state even if they would be eligible for benefits in multiple states. If a state workers’ compensation law holds that you can only collect benefits in that state, then you cannot collect benefits in multiple states.

But if state law is silent about the receipt of benefits in multiple states you can collect benefits in multiple states. As one Supreme Court justice pointed out, workers’ compensation benefits are limited and they don’t always adequately compensate an injured worker. Double collection of benefits isn’t necessarily a windfall. But as I pointed out in a post in 2017, the Supreme Court isn’t overly supportive of injured workers claiming benefits in multiple states. The last decision on this issue came out nearly 40 years ago, the Supreme Court has become even less friendly to workers since then.

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, Uncategorized, Workers' Compensation and tagged , .

Protect yourself and right to workers compensation at your holiday job

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Nearly 13 million Americans work more than one job. Some people also take on temporary jobs in retail, warehousing and delivery during the holiday season. Here are some reminders about holiday work to protect yourself and your rights to benefits such as workers’ compensation.

Temporary jobs tend to have higher injury rates – Studies show that new employees are more likely to get injured on the job. If you are starting an unfamiliar job, you are more likely to get hurt. Don’t worry temporary and new employees can still claim workers’ compensation.

Fatigue and irregular shifts contribute to accidents – Many people will work a holiday job after their regularly scheduled job. Long hours make work accidents more likely to happen. Many retail employees are required to work overnights –particularly during Black Friday. Irregular shifts can contribute to fatigue which makes work accidents more likely.

Lost-time/temporary disability based on wages for job where you are injured – Workers compensation pays temporary disability when you miss work because of an injury. The problem with getting hurt at a part-time job is that if you are unable to work because of that injury, you are only paid temporary disability based on the part-time job wages. You can’t be compensated by workers’ compensation for lost income from full-time or other jobs unless you can argue that your job is seasonal. It is hard to prove season employment under Nebraska workers’ compensation law.

But employees can be creative in adding benefits to increase temporary disability. Permanent disability is paid assuming a 40-hour week under the Nebraska workers’ compensation act. (See Neb. Rev. Stat. 48-121(4))

How an injury at a part-time job can affect employment at your full-time job – Some employers are more willing to accommodate employees who were hurt on the job. If you get hurt at a holiday job, your full-time employer may not let you come back to work unless you have no restrictions. That is a questionable practice under the Americans with Disabilities Act.

But if you have to miss work because of an injury at a part-time job, you can still apply for FMLA. Also you may want to apply for short-term or long-term disability if it is offered by your employer. A workers’ compensation attorney can help you maximize your recovery when private disability benefits pay benefits related to a workers’ compensation case.

Are you an employee or independent contractor?– The answer to this question is that if you are working a holiday job, you are an employee. Package delivery is a growing job with the expansion of online shopping? Many delivery services try to classify their workers as contractors as a way to avoid paying workers’ compensation. If you get injured as a contractor working on a delivery job, it is very likely you can bring a case for benefits under the Nebraska workers’ compensation act. But it will likely require help from an attorney to get those benefits.

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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MSHA improves mine safety in Nebraska. (Yes we have mining in Nebraska)

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Sand mines are a common site along I-80 in Nebraska

When you think about mining and work injuries, you probably think about coal miners in West Virginia and Kentucky.

But sand mines line the Platte River valley in Nebraska. Workers in these mines are vulnerable to silicosis, a lung disease, which would be covered under workers’ compensation as an occupational disease in Nebraska. (See Neb. Rev. Stat. 48-151(3))

So what lead me to post about sand mining in Nebraska?

Last month I was staying in Lexington, Nebraska for an early morning workers’ compensation trial against Tyson. The case was a prototypical packinghouse case involving an immigrant with an overuse injury. To the extent that workers’ compensation in Nebraska merits any media discussion, it’s usually in the context of the immigrant packinghouse workers.

I took a break from my final pre-trial prep to get coffee in the breakfast room. Among the din of business travelers and Fox and Friends on the big screen, I noticed investigators from the federal MSHA or Mine Safety and Health Administration.

I identified the crew as MSHA employees from the logos on their binders. If not for that, they were indistinguishable from the mostly blue collar and agribusiness types who frequent the hotel.

I struck up a conversation with one of the investigators.  As I suspected they were in central Nebraska looking at sand mining. I told them I was in town trying a workers’ compensation case. I gave them some encouraging words about their work. One of the agribusiness types shot me a dirty look.

Workers’ compensation laws pay workers for work injuries. This helps encourage workplace safety as employers bear the cost of workplace injuries. Government regulators do the same thing through the threat of civil penalties and sometimes criminal prosecution.

Anti-retaliation protections for miners in Nebraska

The Mining Safety and Health Administration was created by the Mining Safety and Health Act. The MSHA has a whistleblower provision for miners reporting unsafe or hazardous conditions. Nebraska also has a general whistleblower law which would protect mining employees in Nebraska. Sand mining is considered environmentally hazardous and it poses a risk to groundwater. In some circumstances, complaints about the environmental impact of sand mining could be protected activity as well.

The MSHA, separation of powers and the “deep state”

On my way to trial, I felt good knowing that federal workplace safety laws were still being enforced. I’ve written a lot about the role of executive branch in interpreting and enforcing laws. Executive agencies have a lot of leeway in how they enforce laws. But Executive agencies still have to follow the laws passed by Congress. Federal employees who are enforcing federal workplace safety laws aren’t acting as a deep state. They are obeying the dictates of a co-ordinate branch of government – Congress. Congress passes laws and the courts fine tune the laws.  Like the judicial branch, the Executive Branch fine tunes laws through guidance and regulation. Executive agencies have discretion about how to enforce laws as well. But on some level the executive branch has to enforce the laws written by Congress. It doesn’t matter if Gene Scalia or Tom Perez is the Secretary of Labor, if an employer is disregarding safety standards or wage laws they may have to contend with enforcement from the Department of Labor.

Regardless of who is enforcing labor laws, citizens and non-citizens alike have a right to access the judicial system with the help of their lawyer if their employer is violating their rights.

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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Why it matters how your employer insures for workers’ compensation

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Does it matter whether workers’ compensation benefits are paid directly by an employer or by an insurance company? I think it does.

Here is what injured workers should know about self-insured employers in Nebraska and how self-insurance can affect their workers’ compensation claim.

What is self-insurance?

Self-insurance means an employer pays workers compensation benefits directly from company funds. Typically an employer pays premiums to an insurer who pays out benefits.

Because self-insureds bear the entire cost of a work injury they tend to be more hands on in managing workers compensation claims. Many self-insurers have internal workers compensation coordinators who communicate with doctors and go to medical appointments with workers.

How to know if your employer self-insured for workers compensation?

You can skip to the end of this post and check. You can also call the Nebraska Workers’ Compensation Court at 402-471-6468. But if you are calling an someone in a risk management department at your employer about benefits, your employer is probably self-insured

Some self-insureds contract out to third-party administrators such as Gallagher Bassett and Sedgwick. (Sedgwick was criticized for giving Iowa Governor Kim Reynolds a ride to an Iowa State bowl game in a company jet.)

How does self-insurance effect your claim?

Most employers who are self-insured for workers compensation are also self-insured for health insurance. Typically, health insurance will shift the costs of work injuries onto workers compensation insurance. But when an employer is paying for both health and workers compensation insurance, employers will try to shift the cost to the least expensive form of insurance. Usually it costs the employer more to pay through workers compensation than it would through health insurance.

More importantly employees often incur significant out of pocket costs of injuries are shifted onto health insurance.

Self-insurance may also impact settlement value. Any employer that is self-insured for both workers’ compensation and health insurance typically values future medical benefits less than an insurance company. Self-insureds argue that they will bear the cost of the injury either through workers’ compensation or health insurance.

Interaction with employment law

As mentioned earlier, self-insureds tend to be more hands on in managing claims. I believe this can make such employers more vulnerable to retaliation claims as terminations are often used as an excuse to reduce or not pay workers’ compensation benefits. Self-insureds are also more apt to ask for so-called global releases of workers’ compensation and employment law claims. Global releases often require the employee to resign their employment. Often times a resignation is the only way that an employee can get fair settlement value for future medical care if they are employed with a self-insured.

Differences in regulation

Workers compensation insurance is regulated by the Nebraska Department of Insurance. Self-insureds are subject to regulation by the Nebraska Workers’ Compensation Court. The court regulates both claims practices and the solvency of self-insureds at NWCC Rules 69-76.

The risk of bankruptcy is another important difference between self-insureds and employers who carry outside insurance. If an employer goes bankrupt, the employee is still covered by workers’ compensation insurance. If a workers’ compensation insurer goes bankrupt, then a guaranty fund should pick up coverage. But if a self-insured goes bankrupt, the injured worker is less likely to get full compensation.

Who is self-insured for workers’ compensation in Nebraska?

Here is a list of approved self-insureds from the Nebraska Workers Compensation Court.

 

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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Why can’t I find a workers’ compensation lawyer in Kansas?

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I received a call from a former client one afternoon.

“My sister got hurt at work in Kansas, but she can’t find a lawyer. Do you know someone?”

I had a similar question a few months earlier. So why is it harder to get a workers’ compensation lawyer in Kansas than it is in Nebraska?

The short answer to the question is Nebraska has much better workers’ compensation laws than Kansas, so more lawyers are willing to take workers’ compensation cases in Nebraska than they are in Kansas.

Because of a quirk of legal history, explained more in depth here, workers’ compensation laws developed as state-based laws. Bordering states can have vastly different workers’ compensation laws –Nebraska and Kansas are a prime example

Kansas v. Nebraska: Prevailing cause vs. contributing factor

Medical causation is a crucial issue in a workers’ compensation case. Causation standards are tougher for employees in Kansas. In Kansas work duties must be a prevailing factor for an injury to be covered under their workers’ compensation act. In Nebraska work just needs to be a contributing factor to the injury. 

In Nebraska, aggravation of an old injury is routinely covered by workers’ compensation. If a work combines with personal health conditions to cause an injury, that is covered by workers’ compensation in Nebraska. In Nebraska, in most workers’ compensation cases the parties aren’t arguing over whether workers’ compensation will pay, they are arguing over how much workers’ compensation will pay.

In Kansas, there are many more arguments about whether workers’ compensation will pay because of the more difficult causation standards in their workers’ compensation law.

The practical effect of the difference in laws is that it is hard to find a lawyer willing to take a workers’ compensation case in Kansas. Some Kansas attorneys view calls about workers’ compensation cases as borderline nuisance calls.  The shortage of lawyers in Kansas willing to take workers’ compensation claims particularly hurts injured workers that are far away from metropolitan areas that require lawyer travel.

In contrast, in Nebraska, lawyers who specialize in workers’ compensation usually have significant client bases outside of Lincoln/Omaha and travel to the less populated parts of the state on a regular basis. Nebraska pays many types of injuries on a loss of earning power basis, which means that injured workers in parts of the state that are remote from population centers potentially have more valuable cases. Lawyers in Nebraska are willing to travel to represent those employees. In Kansas that distance from a population center is hurdle to a lawyer accepting a case.

Sometimes employees can get get a good outcome in a Kansas workers’ compensation case. This also isn’t to say that there aren’t good workers’ compensation lawyers in Kansas. Tough laws can make for tough lawyers. But Kansas workers’ compensation laws are worse for workers than Nebraska laws, so fewer lawyers are willing to represent injured workers in Kansas than in Nebraska.

How to claim Nebraska workers’ compensation if you were hurt in or live in Kansas?

In order to bring a workers’ compensation case in Nebraska, Nebraska has to have jurisdiction over the employee and the employer. If you were hurt in or hired in Nebraska, you can bring a Nebraska workers’ compensation claim. If your employer is based in Nebraska or does business in Nebraska, your employer is subject to the Nebraska workers’ compensation act and you can bring a case in Nebraska.

Why are workers’ compensation laws better in Nebraska than in Kansas?

This is more of a political question than a legal question. Nebraska and Kansas are both conservative “red states”. I believe the difference between Nebraska and Kansas when it comes to workers’ compensation, and other issues, can be explained by the unique nature of Nebraska’s legislature. Nebraska is unique among the 50 states in having a one house or Unicameral legislature. More important are legislative rules in Nebraska that require a broad consensus to enact legislation. Nebraska also elects legislators on a non-partisan basis which further re-enforces the need for consensus to pass laws. These rules are further enforced by norms and customs within the Unicameral that make it difficult to push through legislation without broad support.

The current Governor has pushed to change those rules, but has not been able to bend the Unicameral to his will.

While big business interests will gripe about workers’ compensation in Nebraska, Nebraska has a business-friendly litigation climate in general which blunts the pressure to reduce workers’ compensation benefits in Nebraska. This is particularly true as workers’ compensation claims continue to decline. In short, there doesn’t seem to be the political will — at this time — to push for making Nebraska’s workers’ compensation laws like Kansas 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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What protections will pork plant workers have after the USDA allows faster line speeds?

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The United States Department of Agriculture (USDA) announced  it would allow pork processors like Tyson, Smithfield and Hormel, to speed up production. Worker safety advocates rightly pointed out that faster production line speeds lead to more injuries for meatpacking workers.

Fortunately, the USDA is not the last word on regulating working conditions in meatpacking.

Workers’ Compensation laws

State workers compensation laws make employers bear the costs of work injuries. In Nebraska a packinghouse worker need only show working conditions contributed to their work injury. Nebraska also compensates multi-member injuries based on how the injury impacts a worker’s ability to earn a living in many circumstances. This way of compensating an injury can take into account ability to understand English and size of job market in compensating a work injury. This means meatpacking workers, particularly immigrant workers, exposed to higher line speeds in Nebraska have the opportunity for fair compensation.

Nebraska also enacted a Meatpacking Workers’ Bill of Rights in 2000 to some fanfare. In my experience that law is mostly symbolic. I believe the amendments to  Neb. Rev. Stat. 48-121(3), enacted in 2007 which expanded the coverage for multi-member LOEP injuries is substantively more important for meatpacking workers than the meatpacking bill of rigthts.

But workers compensation laws can vary greatly by state. The same packinghouse worker in Kansas would have a more difficult time being compensated fairly for injuries caused by faster line speeds because of major differences between Nebraska and Kansas workers’ compensation law. Kansas workers can only collect workers compensation if they prove their work is a prevailing factor in causing their injury. This is a much tougher standard than the contributing factor required in Nebraska.

Unions

Unions are another factor that can help remedy the effects of faster line speeds in pork plants.  Meatpacking workers are about eight times more likely to be unionized than the typical private sector employee. In Nebraska, two major pork plants, Smithfield in Crete and Hormel in Fremont are unionized. But not all plants are unionized and union plants may feel pressured to compete with non-union plants regarding line speed.

OSHA

Meatpackers have pointed out that United States Department of Labor/Occupational Safety Health Administration (DOL/OSHA) is still regulating workplace safety. They have also pointed out that the Obama USDA moved to increase line speed in poultry production in 2014.

It is true the Obama USDA approved faster line speeds for poultry workers, but the Obama DOL was relatively aggressive in protecting poultry workers. The Trump DOL has been less aggressive in enforcing workplace safety rules. I would imagine they will become even less aggressive now that Eugene Scalia has been confirmed as Secretary of Labor.

Scalia, the son of the late Supreme Court Justice, argued against an OSHA ergonomics rule proposed by the Clinton administration which likely would have prevented many overuse injuries. The younger Scalia’s bid for Labor Secretary was supported by high profile legal scholar and Obama regulatory czar Cass Sunstein. Sunstein’s support of Scalia shows the DC legal establishment is ambiguous at best, hostile at worst to federal regulation of workplace safety.

If Donald Trump wins a second term, the DOL will likely turn a blind eye to the occupational effects of faster line speeds signed off on by the USDA. If the Democrats take over in 2021, it’s harder to know what will happen.

Some pundits think a Democratic president would be more aggressive in defending labor and employment rights. Steven Greenhouse seems to be particularly optimistic about the plans of the major Democratic candidates. I would note that Greenhouse doesn’t seem to have factored in workplace safety issues in his grades of the candidates.  I don’t want to delve too deeply into the Democratic presidential primary right now. I hope any future Democratic administration has a better record on workplace safety than the Obama administration did.

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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Why injured workers stop going to the doctor even if they are still in pain

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Some work injuries never really resolve. Often an injured worker works through pain in order to support themselves and their family. Many workers in this situation stop seeking medical treatment for their work injury – and that often causes major problems for the injured worker.

Besides the obvious health issues, there are two legal problems that arise when an injured worker gives up on medical care. The first is that it lowers their chances of getting future medical care awarded in court. Injured workers who stop seeking medical treatment for their injuries can also undermine their credibility with a judge. The assumption is that if an injured worker isn’t seeking medical treatment they really aren’t hurt and any testimony about pain or limitations lacks credibility.

But there are many good arguments to make about why injured workers’ stop seeking medical treatment.

1.Workers’ compensation stops paying medical benefits – When workers’ compensation stops paying for medical care, many injured workers can’t afford to pay for treatment.

1a. Injured workers are told their case is “closed” by an insurer or employer – Insurance adjusters and nurse case managers often tell injured workers that their case is closed when their doctor places them at maximum medical improvement or MMI. This often accompanies a check for permanent disability that many workers believe is a settlement that closes their case.

A workers’ compensation case stays open for at least two years from the last payment of benefits.  A case is only closed if it goes to trial and gets dismissed or if the injured worker signs settlement paperwork that is filed with the Nebraska Workers’ Compensation Court.

But, it’s easy to understand why an injured worker may think their case is closed and not go to the doctor in this situation. After all they have been told by an authority figure that their case is closed and they received a check for permanent disability.

Many self-insured employers in Nebraska also discourage injured workers’ from seeking medical care after the employee is released from care by a doctor.  

2. Non-existent or bad health insurance – An injured worker can continue seeking medical treatment in a denied workers’ compensation case by having their health insurance pay. Some employees do just that whether it’s under their insurance or under a spouse’s insurance. Taking that action can be  helpful. But if you don’t have health insurance because it’s not offered or because you can’t afford it, that’s not an option.

High deductible and co-pay insurance can be almost as bad as no insurance. I’ve seen two employees with supposedly “good insurance” have medical bills in disputed workers’ compensation claims sent to collections. Nebraska has enacted legislation to protect injured workers from debt collectors, but an injured worker would likely need to get an attorney to enjoy the protections of that law. Often times injured worker don’t want to or are afraid to contact attorneys. Adjusters and other company health personnel will also discourage employees from calling lawyers.

3. Unable to take time off from work to go to doctor — Medical clinics tend to be open during business hours when injured workers are working. That time crunch can also be amplified by having to commute to a job.

Insurance and management side readers may say “What about FMLA?” FMLA could allow an injured employee to take time off for medical care. But some employees may not be aware of their rights under the FMLA. Employers usually also require paperwork for FMLA which requires the cooperation of a medical doctor which can create a hurdle for some employees — particularly those without a good relationship with a doctor.

Not all employees are eligible for FMLA.  Maybe their employer has fewer than 50 employees. Maybe they haven’t been employed for more than a year.  Maybe an injured worker has exhausted their FMLA leave during their work injury.  Maybe the employee hasn’t worked enough hours because of the injury to be eligible for FMLA.

As added insult to a work injury, an employee taking time off work to see medical treatment would be taking intermittent FMLA. Employers hate intermittent FMLA and often employees who use intermittent FMLA are often suspected of fraud.

Urgent care clinics and emergency rooms are available for treatment after hours. But going to an ER complaining of pain is a good way to get tagged as a drug seeker by the insurance industry.

4. Worker is alienated from treating doctors — Some employees don’t go to the doctor if they are in pain because they don’t trust or like their doctor. I will be the first to admit that some injured workers are unreasonable people. But some doctors have a lousy bedside manner. Some doctors are overly cozy with nurse case managers who work for insurers or employers. When either of those two factors are present, even a reasonable and personable injured worker may feel that treating with that doctor is futile.

I mentioned suspicions of drug seeking behavior by injured workers earlier in this post. Concerns about drug abuse by injured workers have been heightened over concerns stemming from the opioid crisis. As a result, doctors are even more reluctant to prescribe pain medication. As I pointed out in April, concerns about opioid addiction are good pretext for insurers and claims administrators to wash their hands of medical care obligations under workers’ compensation.

But if opioids and benzos are off the table for long-term pain management, what are the alternatives? Currently, there isn’t much that is widely accepted. If injured workers hear from their doctors that they can’t do anything about their long-term pain, that message will discourage an injured worker from seeking medical treatment.

Some doctors are willing to perform novel pain management techniques like stem cell therapy or prolotherapy. But since these methods are relatively new, so they aren’t widely accepted. Since novel ways to treat pain aren’t widely accepted, it’s easy for insurers and claims administrators to deny those novel treatments.

 

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 , .

What The Office gets wrong and right about workers compensation

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“What do you want to watch?”

“I don’t know.”

“How about The Office?”

“Okay.”

I had this conversation with my wife a few weeks ago after we put our son to bed. That night we ended up watching Episode 2 of Season Six. In that episode warehouse manager, Daryl, makes a workers’ comp. claim for a knee injury. The claim leads to Dwight to suspect fraud.

Of course, I thought the episode got a quite a bit wrong about workers’ compensation, but the episode got some things right as well.

Workers’ compensation as a substitute for health insurance — Daryl claims in the episode that he wouldn’t have to claim workers’ compensation if the United States had “universal health care.”  This is a misconception for two reasons.

One study showed the expansion of health insurance under the Affordable Care Act  means more claims are pushed onto workers’ compensation because health insurers don’t want to pay benefits for medical treatment that should be paid for by workers’ compensation.

Secondly, Canada has universal single-payer health insurance. Canada still has workers’ compensation laws.  Work injuries also lead to income loss, so workers’ compensation doesn’t just pay medical bills, but it also provides payment for loss of income and permanent disability.

So, to quote Oscar Martinez, actually even if an employee has health insurance, they could be claiming workers’ compensation for both income loss reasons and because their health insurance is pushing them to claim workers’ compensation.

Presumption of fraud — Dwight assumes that Daryl’s claim was fraudulent.  At the end of the episode it is strongly implied that Daryl lied about how he hurt his knee. This plot development lines up with the presumption that workers’ compensation claims are almost per se fraudulent. This ignores the fact that most serious workers’ compensation fraud is committed by employers and medical providers. (For the record misuse of company property isn’t a per se defense to denial of workers’ compensation benefits.)

What “The Office” Gets right about workers’ compensation

The stigma of workers’ compensation

The Office episode accurately portrays the skeptical attitude that many employers have about workers compensation. Dwight and Toby’s spying on Daryl is not out of the ordinary for employers. Daryl’s comment that he wouldn’t be filing a claim if he had better health insurance also indicates an attitude on his part that he is doing something wrong by filing a workers’ compensation claim.

Surveillance

The episode also includes Dwight and Toby spying on Daryl. Surveillance of injured workers is fairly common. I have also seen my share of managers engaging in the type of freelance surveillance of the type engaged in by Toby and Dwight.

Employment law issues and workers’ compensation

The episode also portrays the fundamental truth about Human Resources – they are there to protect the company. Even if HR comes off as being on the employee side, as shown by Toby’s fist bump to Daryl when Daryl turns in his injury claim, Toby is willing to go along with Dwight’s “investigation” of Daryl’s injury. Further the normally mild-mannered Toby even goes so far to yell an insult at Daryl’s sister when he mistakenly thinks she is Daryl committing workers’ compensation fraud.

The story line ends with Dwight filing a grievance against Daryl for misusing company property and Daryl filing a grievance against Dwight and Toby for spying on him. The episode is accurate that work injuries often create employment law issues related to retaliation. While the Daryl claims workers’ comp. plot line ends with the episode, workers’ compensation retaliation can have long-lasting and serious effects.

The scene where Daryl confronts Toby and Dwight about the spying also contains an undercurrent of racial tension between Daryl, who is black, and Toby and Dwight – who are white. Workers’ compensation retaliation can also be mixed in with other forms of discrimination such as racial discrimination.

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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