Category Archives: Workers’ Compensation

Why disability means different things in workers’ compensation and social security

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Workers’ compensation benefits are described as temporary and permanent disability benefits in Nebraska. When many people hear the word disability they think or say “ I don’t want/need permanent disability, I can work.”

I understand the sentiment, but I think non-lawyers confuse Social Security Disability Insurance (SSDI) benefits with workers’ compensation disability benefits.

Broadly defined, disability means how a medical condition or injury impacts someone’s ability to earn wages. There are many differences between the workers’ compensation disability and social security disability, but so-called “non-scheduled” workers’ compensation benefits and SSDI benefits are both paid based on how an injury impacts your ability to earn a living. In both types of claims judges will rely on vocational counselors as experts in determining the extent of a person’s disability

But a recent United States Supreme Court decision, Biestek v. Berryhill, focused on two key differences between workers’ compensation and social security disability when it comes to evaluating the testimony of a vocational counselor — the standard used to determine disability and the procedures you can use to prove disability. The narrow issue in Biestek was the availability of jobs to the claimant within his work restrictions. I hinted at some of those differences in a post I wrote about Biestek, that you can read here. But here is some further explanation about the differences between disability for the sake of workers’ compensation and social security.

In short, it is easier to discover information about the availability of work in a Nebraska workers’ compensation claim than it is an SSDI claim. Injured workers’ also have more ways to investigate the availability of jobs in a Nebraska workers’ compensation claim than they do in a SSDI claim.

SSDI v. Workers’ Compensation: National vs. Local labor market

In order to obtain SSDI, there must be a finding that a claimant can not find work in the national economy. From reading the Biestek case, it’s fairly clear that the availability of jobs within the national economy is somewhat of a mystery based on spotty public information.

In contrast, in a non-scheduled injury in Nebraska, disability is determined first by the hub community, usually where the employee lives, and the available jobs within that community. One of the main points of contention in this type of litigation is what constitutes a reasonable commute. The questions of the cost of the commute in relation to expected wages and the injured workers’ ability to tolerate the commute are usually the most pertinent issues.

Attorneys for injured workers generally try to limit the size of a labor market for their clients as appropriate. The smaller the labor market, in general the easier it is to see the actual availability of jobs from public sources like online ads and even information from government agencies such as the Nebraska Department of Labor. This information makes it easier to check whether a vocational counselor is basing their opinion on accurate information.

Additionally, an attorney for an injured worker can even often get information about jobs available within the plant or worksite where they were hurt. Often times publicly available sources will only have one listing for large employers. Particularly in small towns in Nebraska, a large meatpacker might be the largest employer in town.  These employers will sometimes attempt to argue that the availability of jobs within their plaint is irrelevant in a workers’ compensation case because they can accommodate most any restrictions. At least during the investigation of a case, judges generally don’t find that argument persuasive. As a result an injured worker can find out what jobs they could do within a large manufacturing or food processing plant

SSDI v. Workers’ Compensation: Differences in procedure. Part of the reason that it is easier to probe the basis for an opinion by a vocational counselor in a Nebraska workers’ compensation court than in an SSDI hearing is that rules of civil procedure apply in the Nebraska Workers’ Compensation Court (See NWCC Rule 4). The rules of civil procedure allow a party to do investigation or discovery into the basis for an expert opinion. In Biestek, the Supreme Court basically stated that the decision would have turned out differently if the rules of civil procedure applied in social security proceedings.

In Biestek, the vocational counselor refused to turn over relevant information based on concerns about confidentiality and the Supreme Court held that was permissible. Because the rules of civil procedure apply in the Nebraska Workers’ Compensation Court, an employee is generally free to obtain information that is relevant or could be relevant to their case. (See Rule 6-326(a)(1))

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, social security, Workers' Compensation and tagged , , .

GPS poses safety, legal risks to new professional drivers

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Contrary to conventional wisdom, one study shows the most dangerous distraction for drivers isn’t texting and driving, but the use of GPS navigation systems.

As driving jobs expand with rise of the gig economy and online shopping drivers, especially inexperienced drivers, may be relying on GPS navigation to the detriment of their safety of the job. Navigation devices can be a visual and cognitive distraction. The occupational hazard posed by GPS navigation brings up some important legal issues and hazards for professional drivers.

Employee classification is a major issue. Employees can collect workers’ compensation even if their own negligence caused the accident. In other words, the employee who got in an accident while distracted by their navigation system is still covered by workers’ compensation.

But it you are classified as an independent contractor, you are on your own for medical bills, lost income and permanent disability you are on your own if you are involved in accident where you at fault.

Unsurprisingly, gig economy companies like Uber and Lyft are fighting to classify their drivers as contractors. Gig economy companies are involved in a high-profile legislative fight in California that may have broad implication in other states and even at a federal level.

New employees are more likely to get injured. This is not good news for drivers in the high turnover ride hailing industry. A study of Uber drivers shows that nearly 2/3rds quit after six months and another study shows only 4 percent of drivers stay on for a year. The majority of drivers also drive for less than one year.

Ride hailing drivers may be particularly vulnerable to other distractions. Some ride hailing drivers will operate what amounts to a command center on their dashboard because they drive for multiple apps and monitor price information with separate phones.

Because of all those potential hazards to ride hailing drivers, I don’t think workers’ compensation attorneys can talk enough about misclassification of ride hailing drivers. But even drivers who are employees are vulnerable to risk from GPS caused auto accidents. Workers’ compensation only covers medical expenses and lost income from an injury. Workers’ compensation, at least in Nebraska, would not cover the cost of an auto insurance deductible for a driver who damaged their vehicle in a work injury where the employee was at-fault.

Many workers who do driving or delivery jobs also work at other jobs. Even if an injured driver is covered by workers’ compensation workers’ compensation disability benefits are only based on earnings from that employment.

For example, if an employee gets hurt in Nebraska and can’t work because of an injury on a second job where they made $150 per week, their temporary disability pay is limited to $100 per week even if that injury prevented them from doing another job where they made $600 per week. So even if the employees real loss of wages is $750 per week from an accident, they would be limited to $100 per week on a temporary basis. Nebraska law (Neb. Rev. Stat. 48-121(4)) assumes a 40-hour work week for the purposes of permanent disability, but employees can still be undercompensated for injuries on a second job – particularly if the second job had a relatively low hourly wage.

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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Surveillance drones: Coming soon to Nebraska workers’ compensation?

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Last summer Brody posted about the possibility of drone surveillance in workers’ compensation cases in Nebraska. Some new developments lead me to believe that drone surveillance of injured workers in Nebraska may be coming soon.

The first development is the fact that Amazon has patented its delivery drones for aerial surveillance. This technology is intended for home security but it could easily be transitioned for surveilling injured employees. Granted, technology companies tend to oversell their technological innovations, but Amazon plans on starting drone delivery by the end of this year.

I would assume that Amazon drones would be based at their fulfillment centers (warehouses). Amazon recently opened up a warehouse in Nebraska at the intersection of I-80 and Nebraska 370. (Amazon trucks and vans have proliferated in Lincoln recently) That location could make it easy to open up drone surveillance in metropolitan Omaha.

Some states have attempted to legislate against drone surveillance. But I suspect that providers of drone surveillance will argue that state laws regulating drone surveillance would be preempted by federal law. Though the issue hasn’t been addressed by the United States Supreme Court, a majority of jurisdictions have held that the Federal Aviation Act (FAA) preempts state workers’ compensation fee schedules that regulate air ambulance charges.

Could federal regulators step in to prevent drone surveillance in workers’ compensation cases? Even assuming that intervention would survive a court challenge, it would seem unlikely for now. The FAA is an agency of the Department of Transportation. The current Secretary of Transportation Elaine Chao previously served as Secretary of Labor in the George W. Bush administration. As Labor Secretary, Chao was not considered to be worker-friendly.

The best way to limit drone surveillance would be through federal legislation. That doesn’t seem likely so long as Elaine Chao’s husband remains Senate Majority Leader. (#draintheswamp) But again, if Amazon is going to be a provider of drone surveillance they are going to have bi-partisan clout to stop efforts limiting drone surveillance. Amazon already provides computing services to the Department of Defense.

But there is a federal election coming next year. If you are concerned about the weakening of workers’ compensation laws and the growing influence of Amazon, support  candidates who share those concerns. (Veiled endorsements by Jon Rehm, do not represent the views of the firm or its other partners or support staff)

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 , , , .

Claiming workers’ comp, when short-term disability has paid for time off because of a work injury

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A few days ago I wrote “Five reasons why office workers don’t file workers’ comp, claims for hand and wrist claims.” One of those reasons is that I think many employees use private health insurance and short-term disability to pay the cost of work injuries rather than workers’ compensation.

To understand why this hurts workers, it helps to understand the difference between workers’ compensation, short-ter, disability and private health insurance.

The difference between workers’ compensation, short-term disability and private health insurance.

With a few small exceptions, workers’ compensation is mandatory for all employers in Nebraska. Workers’ compensation includes payment for wage loss, permanent disability and medical benefits that are standard for all employers. Employers bear the cost of workers’ compensation. Finally, employees, at least in Nebraska, pay nothing for medical care under workers’ compensation. But workers’ compensation only covers expenses related to work injuries.

In contrast, private disability insurance is not required. Private disability covers income loss for occupational as well as non-occupational conditions. While health insurance coverage is mandatory for larger employers, there is a lot of variation among insurance plans. More importantly, employees generally have to foot some of the cost of private disability and health insurance coverage. Finally, under private health insurance, an employee has out of pocket expenses in the forms of co-pays and deductibles.

The seeming advantage of putting an injury on private insurance and short-term disability is convenience. Additionally, short-term disability policies sometimes pay 80 percent of lost income while workers’ compensation insurance only pays 2/3rds. Additionally, workers’ compensation benefits can undercompensate some highly paid employees.

But on closer examination, workers’ compensation is a better deal most of the time. First of all, workers’ compensation benefits are generally not taxed while short-term disability benefits are more likely to be taxed. Under workers’ compensation an employee doesn’t have to pay out of pocket for medical expenses. Out of pocket expenses for even a simple procedure covered by insurance can range into the thousands of dollars.

Workers’ compensation pays for permanent disability for hand and wrist injuries on an impairment basis for single member claims. This means the employee gets paid something if they have damage to their body, even if they can return back to their job full duty. Long-term disability policies tend not to pay out unless an employee is unable to work.

Claiming workers’ compensation after short-term disability and health insurance pay for the costs of surgery – This is permissible and is often a smart financial move for an injured worker, but attorney involvement is usually needed. In cases where an employer is forced to pay medical bills through workers’ compensation and that the client and their health insurer originally paid, the client and health insurer get reimbursed by the doctor. Out of pocket expenses are eliminated and can be paid to the employee by the provider.

In some such cases employees can get a refund from their private health insurer through the so-called the so-called common fund doctrine if the health insurer gets paid back from a workers’ compensation claim.

Employees pursuing a workers’ compensation claim when short-term disability paid can also end up ahead financially. An employee can be paid permanent disability benefits for a wrist or hand injury even if the employee is able to return back to work and has little if any functional restrictions.

But health insurers and disability insurers will attempt to claim repayment or subrogation rights under a federal law known as Employee Retirement Income Security Act (ERISA) which regulates some disability and insurance plans. ERISA is a powerful tool for insurers, but it doesn’t apply to a broad class of employers including church-affiliated employers and state and local governments.

It’s important than an attorney can get a look at the insurance plan to determine if ERISA even applies. Employees have some leverage in the way of civil fines against an insurer or employer if the plan administrator fails to provide the plan. ERISA laws generally pre-empt or overrule state laws, but since workers’ compensation laws generally regulate the business of insurance, there is an argument that ERISA may not preempt those laws. Additionally, Nebraska has a law against assignment of benefits which could help limit or eliminate repayment rights. So, in short. a lawyer has ways to push back against a private disability insurer and or health insurer claiming an ERISA lien when resolving a workers’ compensation case.

Workers’ compensation cases where private health insurance and or private disability have paid are also, for lack of a better word, messy. Part of that messiness usually involves some dispute over whether an injury was work-related. In those cases, an attorney can help negotiate unpaid medicals bills and any other repayment rights from a private disability or health insurer. Again, the result of this work is that an injured worker emerges from a work injury in better financial condition than they would have without a lawyer.

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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Five reasons why office workers don’t file workers’ comp. for hand and wrist injuries

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Office work isn’t thought of as physically difficult, but office workers can be vulnerable to hand and wrist  injuries from overuse at work. While these injuries usually aren’t permanently and substantially disabling, these injuries can lead employees to lose wages and rack up thousands of dollars in medical bills.

Yet many clerical workers are reluctant to bring workers’ compensation claims. I think there are at least five reasons why office workers don’t claim workers’ compensation for hand injuries and wrist injuries.

Hand injuries aren’t thought of as serious injuries – According to some Wasington DC think tank, carpal tunnel syndrome doesn’t count as a serious work injury. This conclusion reflects common attitudes that carpal tunnel isn’t a serious injury. If you don’t think an injury is serious, then you won’t seek treatment for the injury or seek to put it under workers’ compensation.

Workers don’t understand causation standards – In Nebraska, occupational factors merely need to contribute to the development of an injury or medical condition for it to be considered by workers’ compensation. Work duties can also aggravate an old injury. There is a misconception that an injury or condition has to be new or mostly caused by work to covered by workers’ compensation.

Workers don’t understand that repetitive use injuries are work injuries – When many people think of an injury they think of a fall or collision that happens at a distinct point in time. But in Nebraska injuries that develop over a period of time can be covered by workers’ compensation.

The stigma of filing for workers’ compensation claims – I’ve written about a lot over concerns about retaliation for bringing claims and the perception that workers’ compensation claims are fraudulent. Colorado attorney Mack Babcock wrote a thoughtful post about how the stigma of filing a workers’ compensation claim discourages employees from claiming workers’ compensation. Employees feel guilty about making claims and are often criticized by co-workers for making claims as well. Employees may customarily pay the costs of a work injury through a short-term disability policy and private health insurance, so an employee who claims workers’ compensation may be rocking the boat.

The first four factors aren’t exclusive to office workers. But I think this next factor explains why many clerical employees don’t bring claims for hand injuries due to overuse.

Cost of work injuries shifted onto private disability and health insurance – I drive past major claims processing centers for Allstate and State Farm when I drive up 84th Street on the way to Omaha. My experience is that the clerical workers who develop hand injuries doing data entry jobs in large companies will often claim short-term disability for time lost after surgery and put medical costs on private health insurance instead of claiming workers’ compensation. I think the four other factors I discussed above lead employees to use short-term disability and health insurance instead of workers’ compensation.

In my next post, I will  discuss the why and how of employees losing money by not claiming injuries as workers’ compensation injuries and what they can do if they have paid the costs of their work injury through health insurance and disability insurance.

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 , , , .

How to Apply for Unemployment while Workers’ Comp Is Denied

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As we have blogged before, it is possible to receive unemployment benefits, even though you are off of work because of a workplace injury. . You do not have to be fired to qualify for unemployment benefits. You can get unemployment benefits if you quit for good cause.

One good cause is if you quit because you are not physcially able to do your job. For example, if your work comp claim has been denied, but you have work restrictions that your employer is not accommodating, you can qualify for unemployment benefits.

When I explain this to my client, the question I often receive is how to actually apply for those unemployment benefits. Below is a list of steps:

1.You must be able and willing to work. Often, you will have work restrictions from your doctor when you are injured. Your employer may not allow you to work within those restrictions. If your work comp claim is denied, and your employer won’t accommodate your restrictions, you may apply for unemployment benefits. You must represent that you are able to work (within your restrictions). You cannot qualify for unemployment if your doctor takes you off of work completely. 

2.To apply online, follow the link at NEworks.nebraska.gov to file an application. You will be required to upload a resume and job-search information. If you do not have access to the internet, you may visit a local Job Center at the following locations listed here: https://www.dol.nebraska.gov/Home/AboutUs. Somehow, you must find a way to get internet access because you will need to post your resume online. If you cannot get to a Job Center, check with your local library. Slow internet speed hindering unemployment claims is a problem in rural areas in Nebraska and across the nation.

3. Have the following information ready to complete an application:

  1. Social Security Number
  2. Complete home mailing address, including ZIP code
  3. Telephone number
  4. Email address
  5. County you live in
  6. Driver’s license number or State ID card number
  7. If you select direct deposit, your bank routing number and account number
  8. The company names for all your employers from the past 18 months as they appear on your paycheck stubs or W-2 forms
  9. Complete mailing addresses of employers, including ZIP code and the city in which the business is physically located
  10. Your start and end dates with each employer, including month, day, and year
  11. Your reason for leaving each employer (lack of work, voluntary quit, discharge, leave of absence)
  12. Employment authorization number and expiration date (if a non-citizen)
  13. If you served in the military the past 18 months, DD 214 Member #4 Form

 

4.Communicate with the Nebraska Department of Labor. Often times someone from the Nebraska Department of Labor will call you to ask questions. These questions are often prompted by infornation submitted by your employer Make sure you answer take that call. We wrote a blog back in 2012 where a Nebraska Department of Labor employee said that many unemployed workers would get benefits if they would just answer their phone whwen  the NDOL calls. After you file a new claim for unemployment benefits, you must file a weekly claim for benefits.

5. If your claim is denied, or you are told that you are disqualified from benefits for a certain period of time, you may file an appeal, but the appeal must be filed within 20 calendar days from the date the determination was mailed. You can file an appeal online at neworks.nebraska.gov, in writing by mail, by fax at 402-471-1734), or by email (NDOL.Appeals@nebraska.gov). If filing an appeal by mail, send to: Nebraska Appeal Tribunal, Nebraska Department of Labor, PO Box 98941, Lincoln, NE 68509. If your appeal is in writing, you must state the reason you wish to appeal, and include your signature, Social Security Number and employer’s name. Include the Determination ID from your determination letter.

If you are unsure how to file an appeal, contact a lawyer or someone at our firm.  The Nebraska Department of Labor tries to schedule hearings within a few weeks of an appeal date. While that might seem like a lifetime when you aren’t receiving benefits, it isn’t a lot of time for a lawyer to get prepared for a hearing.

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, Unemployment, Workers' Compensation and tagged .

Pro/con: Workers’ compensation retaliation as a jury question

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Oklahoma rejected a 7th Amendment challenge to their workers’ compensation retaliation law

The Oklahoma Supreme Court rejected a constitutional challenge to Oklahoma’s workers compensation retaliation statute based in part on the fact the statute doesn’t provide for trial by jury.

Workers compensation retaliation is a common law tort in Nebraska that provides for a trial by jury in a court of general jurisdiction. I believe there are upsides and downsides of making workers compensation retaliation cases tried to juries in a court of general jurisdiction rather than tried in a workers compensation court of limited jurisdiction.

I see some procedural advantages to trying workers’ compensation retaliation cases within the workers’ compensation court, but in substance I think it is better to try these cases in courts of general jurisdiction.

Here are the upsides of trying workers compensation retaliation cases to juries in courts of general jurisdiction.

1. Unlimited damages — Jury verdicts generally aren’t capped. There have been recent seven figure verdicts in workers compensation retaliation cases in Alabama and California. Workers compensation limits damages but those damages are capped with the understanding that fault isn’t relevant to getting benefits. Retaliation is clearly a matter of fault, so it should follow that damages should be unlimited in retaliation cases.

2.  Bringing other causes of action — Workers compensation laws limit the jurisdiction of workers compensation courts. So even if a workers’ compensation court can adjudicate a workers’ compensation retaliation case, it doesn’t have jurisdiction to hear an FMLA, ADA or whistleblower claims that often arise along with a workers’ compensation retaliation case.  Oklahoma’s workers’ compensation retaliation statute was passed in 1976. The ADA and FMLA were passed in the early 1990s before those laws went into effect. I would imagine states with workers’ compensation retaliation by statute have run into similar conflicts.

Another related drawback for a plaintiff is res judicata. An employee forced to try a workers’ compensation retaliation case in a workers’ compensation court, could be unable to bring a related ADA or FMLA claim in a court of general jurisdiction if they lost their workers compensation retaliation claim.

Advantage of trying workers compensation retaliation cases in workers compensation courts.

1. Less motion practice — Time consuming summary judgment motions are the bane of the existence of lawyers who represent employees. Statistically most employment law cases end on summary judgment.

Summary judgment is used a lot less in workers compensation. In Nebraska the judges discourage summary judgment because of the short time it takes to bring a case to trial and because of the extra work required in hearing what amounts to a trial on paper. My impression from listening to judges in other states is that they would agree with their colleagues in Nebraska.

2. Less risk of arbitration — More employers, encouraged by recent Supreme Court decisions, have forced employees to have private arbitrators rather than courts decide employment law disputes. But cases brought in an administrative agency are exempted from arbitration clauses. Workers compensation cases can be decided within the judicial and executive branch. They are also usually not jury trials. In short, it would be harder to force a workers’ compensation retaliation case into arbitration if it is heard within a workers’ compensation court.

 3. Simpler and more certain procedure — Workers’ compensation courts generally have simplified rules of evidence and procedure that is supposed to reduce the cost of litigation. Since workers’ compensation courts are generally tried to single judges instead of jurors, it would be easier to predict how they would decide a case.

Though workers’ compensation judges in Nebraska can’t adjudicate retaliation cases, reported and unreported cases would indicate that the judges are aware of the issue and reasonably sympathetic to employees who may have been retaliated against for bringing workers’ compensation claims.

Counter-point: Hearing retaliation cases could delay and complicate resolution of workers’ compensation cases.

Justice delayed is justice denied. In Nebraska, an injured worker can get a hearing date within 6-9 months of fling a petition and get a written decision in a matter of weeks after trial. I had a trial last month that lasted one hour inclusive of pre-trial matters, opening statements, witness testimony and closing arguments. I suspect Nebraska’s efficiency in adjudicating work injury claims would be impaired if our workers’ compensation court judges had to adjudicate workers’ compensation retaliation cases. I suspect it would take longer to to get a trial, trials would take longer and decisions would be slower.

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, Workers' Compensation and tagged , .

The good, bad and so-so of workplace law in this year’s session of the Unicameral

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State law impacts the workplace as much if not more than federal law. Nebraska workers gained some protections in the recently adjourned legislative session. Equally important, Nebraska workers didn’t lose any rights or protections in the recently adjourned session.

However, most legislation that would have benefited employees stalled. Nebraska’s low threshold for filibusters and traditional deference to committees makes it difficult to pass legislation without broad support. Most of the proposed legislation that would have affected the workplace lacked that broad support in the legislature.

Nebraska will likely retain its business-friendly litigation climate and middle of the pack ranking in comparative costs of our workers compensation systems (Overall costs of workers’ compensation are declining)

So here is the good and so-so of enacted legislation effecting workplace laws in Nebraska. I will also touch on what didn’t pass and talk about some interim studies that might affect legislation down the road.

The Good

LB 217 introduced by Lincoln Senator Patty Pansing Brooks, would make it illegal for an employer to retaliate against employees for discussing salaries. A few years ago, I would have thought the bill would be unnecessary because the National Lanor Relations Act (NLRA) broadly protected concerted activity in the workplace. But in 2018 the Supreme Court handed down the Epic decision which narrowed the definition of concerted activity under the NLRA. Workers in Nebraska will get back some of those pre-Epic protections.

LB 418 — This law, introduced by Omaha Senator Machaela Cavanaugh would prohibit debt collection of medical bills related to a work injury during the pendency of a workers compensation claim. Nebraska has drawn national media attention for how our laws favor aggressive debt collection. This law protects injured workers.

The law requires injured workers and or their attorneys put in a fair amount of work to comply with the new rule. Employees are required to file a petition to invoke protection of the law, so I would be interested to see if the number of petitions filed in the workers compensation court increases.

The collections bill was also paired with a bill that made it easier for non-resident aliens to receive agreed upon settlement proceeds.

On a side note, Cavanaugh has asked for an interim study by the Business and Labor Committee to study the effectiveness of Nebraska’s anti-discrimination laws

The Bad

The bad news of this legislative session for workers’ in Nebraska is that most legislation that could have helped workers did not get enacted into law. Here are some highlights (or lowlights):

LGBT rights — Legislation to include sexual orientation and gender identity within the Nebraska Fair Employment Practices Act fell well short of the necessary votes to overcome a filibuster.

Omaha’s municipal human rights ordinance prohibits discrimination on gender identity and sexual orientation grounds. Lincoln city council member Jane Raybould hinted at a recent town hall type meeting that Lincoln’s “fairness ordinance” that would include sexual orientation and gender identity within Lincoln’s human rights ordinance might be a ballot question in 2020.

The LGBT community may have some protections from discrimination on the job under a “sex plus”  theory of discrimination which outlaws sex stereotyping.

Employee classification — LB 577 ntroduced by Omaha Senator Tony Vargas would have expanded the power of the Nebraska Department of Labor to shut down worksite suspected of misclasfiying employees as independent contractors. The state loses out on tax revenue through misclassification, while workers miss out on workplace protections like workers compensation and unemployment through being misclassified.

Senator Vargas has also proposed an interim study about workers classification that will bear close scrutiny as it will certainly discuss how to classify gig economy workers and discuss so-called portable benefit laws in Nebraska 

Workers compensation — The legislature shelved legislation that would have clarified when temporary disability ends and permanent disability begins. I’ve blogged extensively about the gap or squeeze that can arise when an injured worker isn’t receiving any types of benefits but can’t work or aren’t allowed to return to work.

The legislature also shelved legislation that would have provided death benefits in workers compensation cases, to workers without dependents.  increased funeral benefits and would have limited expenses charged for medical reports. Likewise the legislature also didn’t pass legislation that would have made it easier for firefighters and other first responders to collect workers’ compensation benefits.

Wage and hour and unemployment — Legislation that would have provided paid leave and prohibited retaliation under Nebraska’s Wage Payment and Collection Act didn’t pass. Legislation limiting mandatory overtime for overburdened corrections workers also did mot pass. Legislation that would have expressly included quitting to take care of a family member as a good cause for a quit. was rejected  Lawmakers also rejected a propsal to increase the minimum wage for tipped employees and to index the state minimum wage for inflation.

The so-so

LB 428 exempted highway constriuction employees on seasonal layoff from job search requirements as a condition of receiving unemployment compensation. I pointed out that while business as a whole likes tough work search requirements as a condition of receiving unemployment, construction employers who have seasonal layoffs don’t like them as it gives employees incnetive to switch jobs.

I believe this was somewhat of a missed opportunity. Like other states with weak rural internet connections, Nebraska’s internet-based system to log job search information with the state is difficult to navigate for rural employees. The legislature needs to fix the mechanism that eligibile workers use to receive their unemployment benefits.

 

 

 

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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