Recovering From Injury – “Is Heroism the Standard?” Redux

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Judge David B. Torrey

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm. Judge Torrey’s comments have struck a nerve with lawyers who represent injured workers. They are worth a read.

My friend and colleague, Professor and Judge David Torrey, with whom I serve on the Board of the College of Workers’ Compensation Lawyers, recently posted this blog in response to an insurance industry speaker’s exhortation that injured workers should “ get off their asses” and get better. Here’s his moving response:

Many in the workers’ compensation community complain that seriously injured workers can develop a disability lifestyle, become dependent on drugs, and unreasonably extend their disabilities. Instead of falling into such a lifestyle, these critics argue, disabled workers should show “resilience.” This rhetoric, which I have written about before on this blog, has its genesis in progressive medical/rehabilitation thinking, Muscular Christianity (I think), and, realistically, employer/insurer cost considerations.

The complaint is legitimate, and one with which I have some sympathy. I also believe that some legitimately injured workers do indeed unreasonably extend their disabilities — if only waiting for a generous lump sum settlement. Many readers will know of the sharp critique of this type advanced by Dr. Nortin Hadler in his many books.

On the other hand, the “duty-of-resilience” critique can go too far, and is often articulated in overly simplistic terms. At my agency’s conference in Hershey, Pennsylvania (June 7-8), an articulate industry speaker, addressing an audience about medical marijuana, posited forcefully that the “choice between opioids and medical marijuana [for chronic pain patients] is a false choice….” What workers need to do, instead, is show some resilience and “get off their asses!” After all, a friend of his, who is partially paraplegic, has shown resilience and will often go hiking with him. If she can do it, so can others!

I believe the speaker knew his audience and thus took some pleasure in feeding these lions of the community some red meat, and indeed they rewarded this coarse declaration with a leonine roar of applause.

Yet, his panel partner, Dr. Michael Wolk, thereupon gently reminded the industry speaker — and the audience — that not all people respond to pain and other impairments the same way; indeed, he posited that science has shown that one’s genetic make-up can affect the ability to be resilient.

Dr. Wolk (my God, an astonishing speaker) might also have remarked, as have other physicians at our Pennsylvania conferences, that heroism is not appropriately considered the recovery standard in the first place. Commentators like the industry speaker, talking about resilience, often invoke exceptional individuals, like Christopher Reeve, but most of us realize that not everyone is Superman.

This point was vividly made two years ago in the memoir, A Body Undone: Living on After Great Pain (NYU Press 2016). The author, Christina Crosby, a professor at Wesleyan University, was rendered quadriplegic in a cycling accident, and has been left with chronic pain as well. She recounts in her memoir what life is like with such a catastrophic injury, shows that she indeed has great resilience — but leaves the heroism narrative behind. She makes clear that her circumstances, like education; a life of reflection and discipline; and the unflagging love and support of her family, make her ability to bounce back possible. Most of us know that not every injury victim will have these advantages. (My complete review of Professor Crosby’s book is posted at the research website www.davetorrey.info.)

Is all this not common sense? We have known for a century, after all, that young men respond differently to their traumatic wartime exposures. Some show a grim resilience; some are troubled for life, but are able to continue on; some are broken. In the modern day, most of us would not address such veterans with the admonition that they get off their asses. Injured workers deserve the same respect.

 

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 Workers' Compensation, Workplace Injury and tagged , , .

Changes to Nebraska workers’ compensation laws could speed up settlements

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Our firm was active in drafting recent changes to Nebraska workers’ compensation law

Two changes to Nebraska workers’ compensation law that became effective today could speed up receipt of settlement proceeds for injured workers.

LB 953 will allow settlements to be approved quicker if lawyers representing the injured worker certify the settlement is in the best interest of the worker. These changes should result in more settlements being paid within weeks rather than months. The current law requires court approval of many final settlements.

Another change this year to workers’ compensation laws came with the passage of LB 957, which allows for electronic payment for workers’ compensation indemnity benefits. As of July 19, 2018, if a worker is entitled to indemnity workers compensation benefits, he or she may be paid via direct deposit, prepaid card, or other electronic means. The employee must agree to be paid via electronic payment and the employer must notify the employee of each electronic payment. If handled properly, this could mean quicker payment of workers compensation benefits to the employees.

Workers compensation law was created by the Nebraska legislature. The legislature changes the law occasionally. Rehm, Bennett, Moore, Rehm & Ockander monitors those proposed changes and was involved in drafting these changes working on behalf of the Nebraska Association of Trial Attorneys.

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 legislature, Nebraska, Settlements, Unicameral, Workers Compensation and tagged , , , , .

Nebraska women account for majority of work injuries reported in state

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Leaning in is harder after a work injury.

2017 marked a dubious milestone for women’s equality in Nebraska as women accounted for at least 52 percent of the 37,391 injuries reported by employers to the Nebraska Workers Compensation Court through the First Report of Injury form according to the annual report published by the court.

This figure should be taken with a few grains of salt. 2017 could just be an outlier.  The percentage of First Reports of Injury filed on behalf of women in proportion to total injuries has steadily increased since 2007, but 2017 represented an unprecedented increase in the number of women employees who had First Reports filed on their behalf. The decrease in the number of men who had employers file First Reports on their behalf was nearly as unprecedented.

Court officials also state the numbers could be skewed by the fact that gender is not a mandatory reporting item and that reported injury numbers for a particular year tend to vary from year to year because of late reporting and other factors.

There are other reasons that first report of injuries aren’t a completely reliable measure of the number of actual injuries. A report doesn’t mean that an employee was injured. Not all employers report injuries to the court either. Even if an employee was injured and an employer files a report with the court, that doesn’t mean the injury caused any substantial harm to the employee. In 2017, only 1053 petitions or lawsuits were filed in the Nebraska Workers’ Compensation Court.  Roughly another 700 claims were formally settled without litigation.

Women accounted for 3 of 41 workplace deaths reported to the court in 2017, so men still comprise a large majority of the most serious workers compensation claims.

But the numbers quantify a truth about workers’ compensation and the workforce in general. Women’s participation in the workforce is increasing while men’s participation is decreasing.  Workers’ compensation is still often thought of as “workman’s compensation.” Images of workers’ compensation often include men in hardhats. Men in blue collar jobs like construction and truck driving do get hurt on the job. But women also work in traditionally male jobs like construction and truck driving. Injuries are also common in more gender-neutral sectors like retail, food service and manufacturing as well as in traditionally female jobs like nursing.

Future reports by the Nebraska Workers’ Compensation Court may show the injury numbers from 2017 to inaccurate or an outlier, but women will continue to suffer a substantial number of workplace injuries. 

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 gender equality, Nebraska, women, Workers Compensation and tagged , , , .

Ohio axes PBM for “hosing” state on prescription drugs

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Hey hoser, got any deals on prescription drugs?

The Ohio Bureau of Workers Compensation recently decided to drop the manager of their drug formulary, Optum Rx , who in the words of a court administrator were “hosing” the State of Ohio.

“Told you so,” said me and many other critics of drug formularies.

Drug formularies are touted as a way to reduce opioid abuse and limit drug costs. But formularies are run by pharmacy benefit managers (PBMs) who have been widely criticized for pushing up drug costs. In 2017 The City of Omaha opposed a drug formulary bill in the Nebraska Legislature over similar fears of being hosed by PBMs.

The news out of Ohio came at about the same time as a viral (for the world of workers’ compensation) blog post penned by Judge and Professor David Torrey. Judge Torrey politely bench-slapped an “industry representative” who stated that injured workers needed to “get off their asses” during a panel discussion at a workers’ compensation conference about alternatives to opioids for pain managment.

I understand and share concerns about prescription drug abuse by injured workers. I’ve also encountered clients with serious bowel issues from opioid-induced constipation.  Addiction seems to get more attention than digestive issues when it comes to opioids and workers compensation. I believe part of that stems from the fact that calling some an “addict” is away to dog whistle that an injured worker is a malingerer. Turning injured workers into “addicts” is a way of putting some medically-termed lipstick on a moral and ideological pig created by the insurance industry.

Perhaps true to the Trump age, the panelist in Pennsylvania dropped the conern trolling about addcition and voiced the id buried in the dark heart of the workers compensation medico-legal-industrial complex. Telling injured workers that they just need to get back to work is great for cutting expenses for workers compensation insurers. Drug formularies are good way to increase revenue for the insurance-side middleman in the workers’ compensation system. Drug formularies pre-date the opioid crisis, but they were adapted to “solve” the opioid crisis.

In response to the opioid crisis, the insurance industry has medicalized its age old criticisms of injured workers and the drug companies and PBMs have jacked up drug prices. Meanwhile injured employees aren’t getting any real help in how to deal with chronic pain. Doctors have long known that opioid dependence is a serious issue and that there are no easy solutions to chronic pain.  Opioid prescriptions have been declining since 2012. If insurers and self-insureds were serious about chronic pain, they would approve alternative pain control methods and give doctors discretion to prescribe medication as needed.

The problem with that solution for insurers and self-insureds is that solution would cost them money. It’s easier to lecture injured workers’ about resilience, churn some money off of drug formularies and shift the cost of pain management back onto injured employees.

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 opioids, Workers Compensation and tagged , , , , , .

EPA, USDA rule change proposals could impact workplace safety

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Nebraska Governor Pete Ricketts (left) with former EPA Administrator Scott Pruitt (center) at a meeting in Lincoln last month

Regular readers of this blog know that workplace safety is regulated by the state and federal governments  But even within the federal government, agencies besides OSHA regulate workplace safety. The United States Department of Agriculture (USDA) and Environmental Protection Agency (EPA) have proposed rule and procedure changes that could have an impact on workplace safety.

The USDA has proposed relaxing rules about line speeds in pork plants. Employee advocates have opposed the change because of the well-known link between line speed and musculo-skeletal injuries. In a relatively rare bit of good news, under public pressure the USDA rejected proposed rule changes that would have speed up lines in poultry plants. Public pressure for workers can be effective even in the Trump administration.

The EPA has proposed delaying implementation of two Obama era-rules regarding the prevention of chemical plant explosions  and rules on training workers who are exposed to agricultural chemicals. (5)

The rules concerning exposure to farm chemicals are particularly concerning from a workplace safety perspective. Chemical exposure injuries can take years to manifest and that delayed manifestation can make it more difficult for employees to collect workers’ compensation benefits.

The delays in implementation of the chemical plant and chemical handling training rules have both been subject to court challenges. If the USDA approved an increase in line speed for pork plants, that change would likely be challenged in court as well. Though the Supreme Court is viewed as friendly to business, the court is open to arguments that the actions of administrative agencies can violate the constitutionally-mandated separation of powers between the executive and legislative branch.  In other words court challenges to changes in USDA and EPA rules could succeed. 

The chemical safety rules are also an example of how delay of a rule or implementation of a rule can effectively kill a rule.  EPA Administrator Scott Pruitt has been the target of well-deserved criticism of his administration of the agency. But, as pointed out by Mike Elk of Payday Report, the Obama administration slow-walked some chemical safety rules which them vulnerable to repeal and delay by the Trump administration.

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 EPA, Nebraska, OSHA, USDA, Workers Compensation and tagged , , , , , , .

Appellate courts aren’t going to preserve workers’ compensation

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The Supreme Court rejected a challenge to a “reform” of New York workers’ compensation laws made by Liberty Mutual

Employee advocates, me included, are still trying to process just how bad this latest session of the Supreme Court was for workers. There were bad decisions in wage and hour, whistleblower, forced arbitation and labor law. In lower profile decisions,  the court may have encroached into how work injury cases are litigated and rejected a constitutional challenge to state level reforms.

The Supreme Court may have handed employers/insurers a way to mount constitutuonal challneges to some state workers’ compensation laws in Lucia v. SEC. (Lucia is of more immediate concerns to Longshore and FECA practitioners who have their cases heard by ALJs ). In many states, like Iowa, workers’ compensation cases are heard by Administrative Law Judges that are hired as civil servants rather than appointed  by the Executive. SEC v. Lucia could help employers/insurers to make persuasive appointments clause arguments under state constitutions  that such arrangements are unconstitutional.

Advocates for injured workers have taken some solace in a string of good outcomes in front of state courts in Kansas, Pennslyvania, Oklahoma, Florida and Alabama. But even that run of state-level wins has come to a halt for now.

The Oklahoma Supreme court rejected a constitutional challenge  to Oklahoma’s mandated use of American Medical Association Guides (AMA Guides) to Permanent Impairment, Sixth Edition. Thomas Robinson pointed out the case was distinguishable from a Pennsylvania case strking down a law mandating the use of the “latest” guides because the Oklahoma legislature expressly adopted the AMA 6th to determine how they would pay scheudled member disability. 

Oklahoma isn’t the only state where consitutional challenges to anti-workers changes to workers’ compensation laws have failed recently. The Supreme Court denied certiorari — refused to hear an appeal — from a New York Court of Appeals decision overruling a contracts clause and takings clause challenge to New York’s workers’ compensation law by workers’ compensation insurer, Liberty Mutual. Liberty Mutual was challenging the end of employer contributions to New York’s Special Fund for Reopened Cases that was part of reforms to New York’s workers’ compensation laws made in 2013. The Fund for Reopened cases allows employees to be compensated for cases where claims were at least 7 years old and no benefits had been paid for three years. Essentially the Fund ensures that the costs of old work injuries don’t get unfairly shifted on to workers and other payors. By abolishing the employer contribution, New York state essentially stuck workers’ compensation insurers with the cost of old injuries without being compensated by employers.

Essentially the Supreme Court refused to consider overturning state-level workers’ compensation reform based on the federal constitution. I think there is some consolation in the fact that the successful challenges to workers’ compensation were made on due process and equal protection grounds, while the unsuccessful New York challenge was based on the takings and contract clause. Historically the contracts clause  was used to strike down pro-worker laws enacted by states starting in the late 19th century. (I also find some personal consolation that the successful constitutional challenges to comp reform have been mounted by plaintiff’s lawyers from small firms, while the New York challenge was unsuccessfully argued by a former United States Solicitor General.)

The demise of the Fund for Reopened Cases was prompted by an earlier reform that abolished the Second Injury Fund in New York because insurers pushed former Second Injury Fund cases into the Fund for Reopened Cases. Second Injury Funds were intended to encourage hiring of injured employees by ensuring that new employers were not stuck with the entire cost of aggravation of old injury by a previously injured worker. New York is far from the only state that has abolished second injury funds. Insurance thought-leader types seem to believe that Second Injury Funds aren’t necessary because of the Americans with Disabilities Act.  Anyone with any experience litigating ADA cases for employees would beg to differ.

Fundamentally, the failed New York and Oklahoma court challenges are illustrative of disturbing larger trends in the arena of workers’ compensation. First, constitutional challenges are not a foolproof method of defeating workers’ compensation reform. Secondly even when court challenges do succeed they represent the inverse of the conditions that made workers’ compensation laws possible. Workers’ compensation laws were enacted by legislatures in the face of a court systems that as a whole was either indifferent or hostile to the interests of workers hurt on the job. Now advocates for injured workers look to courts for relief from hostile legislatures. Looking to state appellate courts as an antidote to workers’ compensation reform may become less of an option as anti-worker Governors appoint anti-worker judges. Ensuring the workers’ compensation system protects injured workers will probably depend on the same type of mass politics that lead to the enactment of workers’ compensation laws. That kind of politics is probably beyond the scope of the relative small number of attorneys who represent injured employees, but those of who represent injured workers’ need to ally with broader worker movements and make sure that workers’ compensation is a high priority for other worker advocates.

 

 

 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Constitutional law, Supreme Court, Workers Compensation and tagged , , .

What is a Functional Capacity Evaluation and what does it mean for a workers’ compensation claim?

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A functional capacity evaluation, or FCE for short, is a test that is usually conducted by a physical therapist that tests your physical abilities. They are common in workers’ compensation claims that involve surgeries or extended courses of treatment. So why are injured workers asked to perform functional capacity evaluations:

Injured worker is done treating and medically stable: Usually a doctor will order a functional capacity when the injured worker is medically stable. Sometimes the term “maximum medical improvement” or MMI is used in conjunction with an order for an FCE. MMI is as much a legal determination as it a medical determination. But when an injured worker is at the point of an FCE, the insurer likely believes or would like to believe the claim is close to finished.

Determining restrictions for return to work, permanent disability and vocational rehabilitation. FCE results are given almost total deference by workers’ comp bureaucrats like adjusters and case managers. HR managers also rely on them to place injured workers back in employment. But the FCE is only an estimate. By law an employee can testify to the extent of their own restrictions and an employer has some reasonable obligation to work with those restrictions. A Judge can also rely on testimony from a worker about the extent of their own restrictions. The problems is that an employee may have to wait months before they can testify to their own restrictions and go without benefits and pay until then.

Restrictions from an FCE can also be used to determine permanent disability or vocational rehabilitation benefits. This should mean that at some point a vocational rehabilitation counselor should be involved in your case. Even if you have returned to work for the same employer, in many cases a counselor should be still he helping to determine your disability. Also even if you haven’t gone back to work and might have applied for or be receiving social security disability a counselor should be performing a loss of earning power evaluation in many cases. Often times an insurance company will attempt to close a case after an FCE.

Employers/Insurers may be trying to the validity of your work restrictions. FCEs are designed to see if an employee is giving full effort on the test. In many cases an FCE that is set up by employer/insurer harkens back to the old concept of “trial by ordeal” or “trial by battle” where success in a physical feat could prove guilt or innocence. In the case of a workers’ compensation claim success or failure in an FCE can go a long way towards determining the ultimate outcome of a workers’ compensation case.

Regardless of why an injured worker is being sent to an FCE, it is probably good idea for an injured worker to check-in with an experienced workers’ compensation attorney for a free consultation if they are scheduled for an FCE. The attorneys at our firm can help injured employees navigate the trial by battle that an employer-scheduled FCE can be. We can also let you know what to expect after an FCE and help you overcome the consequences of a bad FCE.

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 FCE, Nebraska, Workers Compensation and tagged , , , , .