Category Archives: Workers’ Compensation

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.

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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.

This entry was posted in employment law, surveillance, Workers' Compensation and tagged .

Why do so few workers get voc. rehab. in Nebraska?

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Injured workers in Nebraska can be eligible for retraining or vocational rehabilitation (VR) benefits. Policy makers and business leaders in Nebraska bemoan a shortage of skilled workers, yet only 85 injured workers in Nebraska had a VR plan approved last year according to the latest report. This is a small percent of overall claims.

What explains this small number? I believe that for an injured worker in Nebraska to get vocational rehabilitation almost everything has to go favorably in their case.  Even if their case goes favorably, they may not be a good candidate for vocational rehabilitation. Assuming they can meet the first and second hurdles, there are some procedural roadblocks in place.

Here are at least six reasons why I think relatively few vocational rehabilitation plans get approved by the Nebraska Workers’ Compensation Court.

1) Injured workers would rather just settle case or have good reason to settle — In order to receive VR, an employee needs to show they cannot perform suitable employment which they were qualified for before the injury. This usually means the employee has a serious injury which often involves a surgery and lengthy medical treatment. Many employees just want to be done their case and are willing to forgo vocational rehabilitation. In many cases there are questions about whether an injury is covered by workers’ compensation or whether the injury was caused by work. In those cases an employee may have tens of thousands dollars in medical bills that the employee could be responsible for if the case goes to trial and the worker receives an unfavorable decision.

2) Not every severely injured worker is a good candidate for vocational rehabilitation— In order to receive vocational rehabilitation a worker must show that they could benefit from retraining. A worker who is at or near retirement age wouldn’t reasonably expect to complete a four-year retaining program to start a new career. Some employees may not have the ability to retrain.

3) Employers are going to contest VR — Workers are paid temporary total disability benefits by their during their training program. Workers eligible for retaining programs also tend to be higher wage employees. An employee in a retraining program can cost an employer tens and thousands of dollars, so employers have incentive to fight long retraining programs.

4) Termination of the employee leads employer to dispute entitlement to VR — Under the law the ability to get a VR plan requires that employee is not able work at a job at their employer. If an employee who is working at the employer where they were injured post-injury  gets fired, the employer usually disputes VR because they will argue they were accommodating the injury until the employee was fired for cause or quit without cause. This puts the workers’ compensation court in a tough spot because the court lacks the jurisdiction to decide a wrongful termination case. There isn’t clear case law on what standards to apply in a case where a termination or quit justifies denial of VR.

If there some evidence of an unlawful motivation in a termination, some employers are eager to settle the workers’ comp. and employment law case on a global basis. A good settlement offer that accounts for the questionable termination often gives employees a reason to forgo VR.

5) Not enough medical evidence — Sometimes an employee is hurt worse than medical records indicate. Sometimes this is because of the influence of outside nurse case managers who work for insurance companies. Self-insured employers often employ in-house case managers who are particularly aggressive in managing medical care to the advantage of employers.

In some circumstances, an employee can testify to the extent of their injuries. But this requires that an employee takes their case to trial. This doesn’t happen if an employee accepts a settlement. But even though an employee can testify about their disability, a judge doesn’t have to accept that testimony.

6. Procedural hurdles — In order for an employee to get VR, that plan must be approved by the vocational rehabilitation section of the court. In VR plans involving schooling, since the state is paying tuition, the state is allowed to contest the approval of plans.

Other hurdles include some customs that don’t have much support in case law, statue or court rule. There is the custom that a VR plan can’t be developed until a worker reaches MMI. There is also a custom that the the results of an FCE test need to be endorsed by a doctor before they can be used by a vocational counselor. Both of these customs can delay the implementation of a plan by months. This delay can be particularly painful if employees are in the gap between when their temporary benefits ceased and their permanent disability benefits are waiting to be determined.

Not all doom and gloom on VR

Some clients do successfully complete VR. I know of some of my clients who have used settlement proceeds to pay for schooling. Changes in the law have allowed some workers to get a lot of the income replacement parts of their VR benefits through settlements. The state of Nebraska also offers vocational rehabilitation through the Department of Education. I have also had clients who been retrained through Trade Adjustment Assistance.

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 .

Conventional wisdom about labor shortages works to reduce workers’ compensation payouts

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Elected official and business leaders argue that Nebraska has a labor shortage due in part to a skills gap between the skills employers want and the skills job-seeking employees have. This conventional wisdom has been challenged, but assuming the skills gap and labor shortage argument as either true or persuasive how will that assumption effect workers in Nebraska who suffered serious injuries on the job?

Injured workers in Nebraska who can’t return to their old job because of an injury can make claims for permanent disability and vocational rehabilitation benefits. Permanent disability benefits pay for the loss of ability to work and vocational rehabilitation benefits are used to help injured workers’ return to employment that is close as possible to their former wage.

My view is that as a practical matter, the perception of a labor shortage in Nebraska helps to reduce pay out of permanent disability benefits in workers’ compensation. But I believe that plaintiffs can argue that any supposed labor shortage should be of limited relevance in determining disability in workers’ compensation.

Nebraska’s “labor shortage” and permanent disability

In Nebraska, many types of injuries, including back and neck injuries are paid permanent disability based on a loss of earning power basis. In other words, permanent disability is paid out on how the injury effects the injured workers  ability to work. Loss of earning power, another term for disability, is an economic rather than a medical question.

In July I wrote about the question of which labor market should be used to determine loss of earning power. But assuming you are using the right labor market to determine disability, what other questions should attorneys be asking about an injured workers’ ability to find work?

At least when it comes to proving permanent and total disability under the so-called “odd-lot theory” a court needs to consider the ability of a worker to sell their services in a competitive labor market unaffected by factors like sympathetic employers or “business booms.”

With near record low unemployment in Nebraska in 2019, the question becomes does historically low unemployment constitute a “business boom”? A related question is whether a job market with alleged labor shortages is a competitive labor market for employees?

I believe these questions arise with seriously injured workers who through a combination of lack of skills and serious injury have job prospects limited to relatively low paid and lighter duty jobs. Some vocational counselors will testify that jobs like retail clerk are available and that employers are willing to accommodate restrictions because of the job market.

But in a recession when unemployment is high, are those employers going to be willing to be so accommodating? Probably not. Studies show that employers tend to raise the qualifications for jobs during times of higher unemployment.

I think there could be some arguments to be made against factoring out abnormally low unemployment in loss of earning power analysis. The first argument is that it would only apply in cases where an employee is an odd-lot or permanently and totally disabled, not permanently partially disabled. In other words, the employee who has a 20 percent disability in a really good job market, can’t argue they would have a 40 percent disability if the job market wasn’t as good.

Another argument against not taking an unusually good job market into consideration in determining disability is that it comes off as speculative. Additionally, ability to earn wages can be taken in consideration of determining loss of earning power. An injured worker who has found employment is going to face a hurdle in arguing they are totally disabled or even substantially disabled in some circumstances.

These arguments can be addressed. In Nebraska, the law is supposed to be interpreted liberally in favor of the employee. I believe liberal construction would mean that abnormally low unemployment could be considered even if the injured worker was not an odd-lot employee.

Concerns about speculative loss of earning power opinions based on questions about what the job market could be in the future, can be addressed because expert witnesses can answer hypothetical questions. Also since permanent disability is meant to compensate workers for their permanent loss of earning power, it arguably isn’t fair to base their loss of earning power based on a snap shot of the labor market at one point in time when economic conditions are relatively good.

The hardest hurdle to overcome is the presumption that in a good job market, an employee should be able to find work. Ultimately those questions get down to questions of credibility of the claimant and need to be decided on a case by case basis.

Questioning the assumption of a skills gap and labor shortage in Nebraska

Though you will rarely hear about it from elected officials or media outlets in Nebraska, many economists and writers question the assumption of a skills gap and labor shortage. The question I have is the best way to present those arguments credibly in the Nebraska Workers’ Compensation Court.

But even if you accept the skills gap/labor shortage argument, that should mean that employers should be clamoring for the award of vocational rehabilitation benefits for injured workers. But according to the latest report of the Nebraska Workers’ Compensation Court only 85 vocational rehabilitation plans were opened in fiscal year 2018. I think there are several reasons why so few plans get implemented, that I will discuss at a later time.

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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More work injuries likely after ICE raids

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Last month Immigration and Customs Enforcement (ICE) raided four chicken processing plants in Mississippi and arrested 650 people for alleged immigration violations. Lots of attention has focused, rightly so, on the children of the workers’ who were detained and the communities where the raids happened.

Less attention has been focused on what will happen to the workers who weren’t arrested at those worksites after the raids. I think workers at those plants will experience more injuries for two reasons

In December 2006, ICE launched a major raid at the Swift Beef plant in Grand Island, Nebraska. Our firm had several clients working in that plant at the time. I remember my clients reporting to me that they were forced to work faster and harder to make up for the employees lost in the ICE raid.

Meat packing employees are already at a relatively high risk for overuse injuries. That risk will likely be heightened if employees are required to work longer and faster in order to make up for employees lost to an ICE raid. Studies show that newer employees are more vulnerable to injuries. The employees who replace the arrested employees will likely be more vulnerable to injury as well.

Meatpacking has the reputation of being a low-skill job. I don’t think that is the case. I know at least in beef packing there are so-called “show stopper” or hourly positions that can nearly shutdown a plant if those “show stopper” employees don’t come to work. Assuming those some “show stopper” employees were arrested, existing employees are likely being trained to perform those jobs or they will be performed by supervisors. Effectively those current employees would be new employees because they would be performing an unfamiliar job.

There were likely workers who were arrested in the raid that had workers’ compensation claims. I don’t know what the law is in Mississippi, but in Nebraska immigration status has little effect on entitlement to workers’ compensation benefits.

There has been some discussion that the raids were a form of retaliation for workers at Koch Foods in Mortion, Mississippi who obtained a $3.5 million settlement from the EEOC for a hostile workplace. I agree that the threat of immigration enforcement does intimidate workers from exercising their rights at work.

But on the other hand, any employer who colludes with ICE to arrest part of their workforce in order to intimidate their workers is cutting off their nose to spite their face. Media coverage of the raids focused on the fact that food processors have sought out an immigrant workforce as a way to cut costs and limit the power of unions. Fortunately, in Nebraska, many meatpacking plants are unionized despite the challegnes posed to unionization in rural areas with a very diverse workforce. It is difficult to discern the motivations of employers, but it could be reasonable to presume that an employer that heavily relies on immigrant labor wouldn’t want to have part of that labor force taken away by an ICE raid. Other employers who weren’t subject to the EEOC settlement at Koch Foods were also raided by ICE.

Meatpackers are in the business of slaughtering and processing animals for meat.  Sure those employers may save some money by discouraging workers’ compensation and unfair employment claims through the threat of immigration raids, but the packinghouses need to keep the chain moving.  That’s harder to do when they are short-staffed due to an ICE raid. 

Plants that were hit with ICE raids are going to be hard pressed to return to pre-raid production levels overnight. That’s why the remaining employees will probably have to work harder, possibly in unfamiliar jobs and likely be more vulnerable to injury.

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 health care is consolidating and what it means for injured workers in Nebraska.

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Nebraska State Senator Adam Morfeld spearheaded the expansion of Medicaid in 2018. The Ricketts administration has yet to implement the expansion approved by voters

Health care is consolidating; hospitals are merging with other hospitals and hospitals are acquiring formerly independent medical practices. This consolidation is driven by the implementation of the Affordable Care Act. (ACA)

Health care consolidation is likely a net negative for injured workers in Nebraska. Injured workers ultimately bear the costs of increased medical costs under the ACA, while not enjoying the benefit of the Medicaid expansion under the ACA,

Why is health care consolidating?

The simple answer is that the Affordable Care Act (Obamacare) was a driving factor behind health care consolidation because its designers assumed health care consolidation would lead to lower costs. As Joe Paduda at Managed Care Matters points out, the overwhelming weight of the data about health care cost and consolidation has shown the opposite.

Consolidated health care systems function as monopolies in the communities they serve. In theory monopolies are supposed to be illegal. But as commentators like Matt Stoller have observed, judges and regulators have effectively gutted anti-trust law in the last 40 years with more or less bi-partisan consensus. Stoller also believes consolidation leads to more corporate crime, which in the world of workers’ compensation would mean fraudlent billing practices.

In my mind, the ACA’s creation of health care monopolies wouldn’t have been feasible if anti-trust law had not been defanged. Opponents of the ACA would have had grounds to challenge the ACA on anti-trust grounds as well as the other legal arguments they used to limit the effectiveness of the ACA.

What does health care consolidation mean for workers’ compensation?

Consolidated hospitals have the power to push up medical costs in workers’ compensation. Paduda points out this is particularly true in states, like Nebraska, that haven’t expanded Medicaid. Workers’ compensation is viewed as a cash cow for hospitals, particularly rural hospitals, that are hurting for revenue

For workers, I believe if workers’ compensation insurers have to spend more money on medical care, they are going to look to cut costs on the indemnity or disability side of workers’ compensation. In short, more money for hospitals and less money for injured workers. This may lead to more pressure to reduce workers’ compensation benefits in an economic downturn.

As I mentioned earlier, the consolidation of health care is partially the result of the Affordable Care Act. The ACA has had some positive effects on injured workers. A study of the ACA showed the shifting of injuries from health insurance to workers compensation.

Expanded health insurance, particularly if not tied to an employer, also allows injured workers to treat for work injuries that have been denied by workers’ compensation insurers.

Expanded health insurance also means that more workers’ will have relationships with primary care doctors and more control over their own medical care in a work injury. But in communities with limited health care choice, injured workers may be pushed towards employer-friendly occupational medicine doctors employed by that particular health care system. The right to chose a doctor becomes moot when there isn’t an effective choice of doctors.

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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