Why does your workers’ compensation insurer want a second opinion and what can you do about it?

Posted on by

Injured workers are often sent for second opinions by insurance companies or claims administrators. The main questions that arise when this happens besides the obvious, “WTF is the b.s?,” are and 1) Why are they sending me to this random doctor or physical therapist? and 2 ) Do I need to go to the examination?

Why you are being sent for a second opinion or FCE by your employer? Cost savings

Your employer is likely sending you to a provider of their choice to minimize their workers’ compensation costs.

Usually employer or insurers ask for second opinions, often called independent medical examinations, or IMEs for short, at critical junctures in a claim. These inflection points include a need for a surgery and or having a doctor place you at maximum medical improvement (MMI) Sometimes employers and insurers have some computer program tell them when your case should be done and schedule medical appointments with that purpose. Functional Capacity Evaluations or, FCEs, are used to determine permanent work restrictions.

The one thing in common all of these situations have is that they involve fairly serious injuries that involve surgery, a long recovery, the need for future medical care and permanent restrictions. All of the above outcomes could lead to a lot of costs to your employer and or their workers compensation insurer.

But costs to your employer or their workers’ compensation insurer are necessary benefits for you. So what do you do when you are faced with an IME or employer-scheduled FCE?

You (probably) need to go. But you should also call a lawyer.

Why you probably need to go this “second opinion” appointment

Under Neb. Rev. Stat. 48-134, employers have the right to have you examined at their expense. In workers compensation vernacular this is called an independent medical examination or IME for short. (These examinations aren’t technically IMEs, but everyone in workers’ compensation in Nebraska uses the term for these examinations. )

Not going to the examination is grounds to have benefits ended. Informally, blowing off an IME is a good way to get off on a bad foot with the Judge deciding your case. However you, or more likely, a lawyer may have some luck trying an examination quashed if it is unreasonable. I think this is difficult burden. I filed a motion to quash a medical examination I thought was excessive about five years. The Judge disagreed pretty strenuously.

Why you probably need to go to an FCE scheduled by your employer

Personally, I think you need would need to go to a, functional capacity evaluation (FCE) set-up by the company. An FCE is a test done by a physical therapist to measure work restrictions. While an FCE isn’t technically covered under Nebraska’s medical examination statutes, the Nebraska Workers Compensation Court has adopted the Rules of Civil Discovery. The Rules of Civil Discovery allow for functional capacity evaluations.

But, like IMEs, an employee, can object to an FCE if they think it’s unreasonable. But again, you would want a lawyer to have a chance to successfully quash an FCE. However, getting an FCE quashed is often a difficult task even for an experienced and knowledgeable workers’ compensation lawyer.

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 Uncategorized and tagged , , , , .

How history explains why workers compensation benefits don’t increase for the cost of living in Nebraska

Posted on by

Increases in the cost of living, or inflation, are taken for granted by most people — except for seemingly in the world of workers compensation. I’ve written two posts recently ( here and here ) about how courts fail to take inflation into account when determining permanent disability benefits.

But in fairness, increases in the cost of living aren’t factored directly into workers’ compensation laws in Nebraska. Some states don’t even increase maximum benefit rates like Nebraska.

So why is it that states like Nebraska don’t include cost of living into permanent disability benefits? I think economic history provides the answer.

The economic world of those who created workers’ compensation

Workers’ compensation laws were enacted in the early 20th century in response to industrialization in the late 19th century. In a very readable section of “Capital in the Twenty-First Century” economist Thomas Piketty pointed out that prices and the value of money stayed stable from the end of the Napoleonic Wars until World War I (1815-1914)

Since World War I, prices have increased, so today we assume some inflation. But the drafters of workers’ compensation laws didn’t share that assumption. Their experience was that prices stayed consistent, so it wouldn’t be necessary to link lifetime or long-term benefits to increases in the cost of living.

Other states do have cost of living increases factored into permanent disability payments. Illinois created their rate adjustment fund in 1975. Social Security also has a cost of living increase factored into benefits. But these are policies enacted in periods when lawmakers assumed some increase in the cost of living was inevitable.

Permanent disability awards as a debt owed to injured workers

I hope Nebraska lawmakers will one day enact cost of living increases into Nebraska workers’ compensation laws. Permanent disability benefits should be thought of a debt owed by employers and insurers to injured workers.  As it stands now, employers and insurers in this are allowed a partial debt jubilee in Nebraska on permanent and long-term benefits because those benefits don’t account for a cost of living. (This is a separate issue from the overly generous discount rate which give employers even more relief on lump sum payments of permanent disability claims).

I see posts on social media about why shouldn’t forgive the student debt for the modern day welfare queen who borrowed $80,000 for a philosophy degree. After the housing bubble crashed in 2008, I saw all sorts of posts about why irresponsible borrowers shouldn’t be bailed out. I’ve never seen a meme about insurers being able to legally shirk their debts to injured workers.

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 Uncategorized and tagged , , , , .

The junkyard dog of bad faith in multi-state workers’ compensation claims

Posted on by

The constitutional right to travel freely within the United States combined with the fact, by fluke of legal history, that workers’ compensation laws are state laws often leads to injured workers having to pursue claims in distant states.

Fortunately, this glitch in our legal system sometimes allows injured workers to pursue and collect benefits in multiple states. Experienced and competent workers’ compensation lawyers know to see if other states have jurisdiction and to try to compare benefits between states.

But I’ve never heard lawyers discuss the impact of bad faith laws when it comes to picking a jurisdiction to bring a claim. I think it’s a fact to ponder.

What is bad faith?

A bad faith claim is a way to sue an insurer for failing to pay a claim without a reasonable basis. At least two states that border Nebraska, South Dakota and Iowa, have bad faith claims for workers’ compensation. Nebraska courts have rejected bad faith claims because the exclusive remedy of penalties under Neb. Rev. Stat. 48-125 punishes employers for unreasonable denials. Penalties under 48-125 include attorney fees, usually computed on an hourly basis, and 50 percent fee on late payment of indemnity benefits. The 50 percent penalty doesn’t apply to late payment of medical bills. In practice these fees and penalties are almost always awarded for late payments of benefits due to clerical oversights.

One former workers compensation judge in Nebraska compared 48-125 to a yipping in porch dog. In short, these remedies don’t discourage questionable denials.

But in other states instead of yipping porch dog, the junkyard dog of bad faith lurks for insurers and claims administrators who find cute ways to deny claims.

The junkyard dog of bad faith vs. the yipping porch dog of Neb. Rev. Stat. 48-125

A recent South Dakota Supreme Court decision reversed a workers’ compensation bad faith verdict of $500,000 with $10,000,000 in punitive damages. You don’t see eight-figure verdicts in the universe of Nebraska workers’ compensation The decision was reversed, but it was reversed based on a decision about a jury instruction rather than the size of the verdict. So what is the practical effect of an insurer being liable for an eight figure verdict for an unreasonable denial of a claim?

I think it goes without saying that the prospect of a massive bad faith verdict encourages employers to pay claims. So even if the underlying benefits may be better in a state like Nebraska without bad faith, the pressure of a bad faith claim in another state, may encourage an insurer to pay benefits under another state’s laws.

So even if long-term and maximum benefits are worse under one state’s laws, at least in the short-term getting paid some benefits is better than not getting paid benefits at all.

That’s why it could make sense to initially collect benefits in a state with worse benefits but stronger penalties for non-payment, then collect in a state with better underlying workers’ compensation benefits but weaker penalties for non-payment of benefits.

Some, may complain that workers collecting benefits in two states are “getting two bites at the apple.” That argument misses the point that workers’ compensation benefits, which by design, don’t fully compensate workers for their harms and losses from a work injury. Supreme Court Justice Hugo Black equated workers’ compensation benefits to pension-type benefits. These incomplete benefits are part of the “grand bargain” of workers’ compensation which pays workers benefits for work injuries in spite of fault.

But another part of the grand bargain, is that by fluke of legal history, that workers’ compensation laws are state laws. Sometimes this means workers are forced to pursue cases in distant states and/or are stuck with terrible benefits. But on some occasions it means that workers can collect benefits in multiple states. The presence of strong bad faith laws in a state may affect where an employee initially brings their claim.

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 Uncategorized and tagged , , , , .

A common sense decision on loss of earning power and inflation from Mississippi

Posted on by

The Mississippi Court of Appeals found that a worker who was still employed with their employer and earning a higher wage than before the injury was still entitled to an award of 20 percent loss of earning power.

So a lot of workers comp. heads who read this blog may wonder why this decision blogworthy and why it applies to Nebraska?

The answer to those questions is 1) I think the reasoning behind Chambers v. Howard Industries is interesting and it questions some assumption behind a recent Nebraska Supreme Court case on apportioning benefits to previous injuries.

In his post on Chambers, commentator Thomas Robinson pointed out that the plaintiff proved that since his job was altered to fit his restrictions that helped prove that he had lost earning capacity which is different than wages earned. The Mississippi Court was also persuaded by the fact that average wages had increased between the time of the plaintiff’s injury and the award, so an increase in wages wouldn’t necessarily equate in an increase in earning power.

I think the Chambers decision is also fair and equitable in that workers are stuck with benefit rates based on their date of injury. Additionally, in Nebraska, workers’ compensation benefits don’t increase along with the cost of living or inflation. Fairness should dictate employers can’t use inflation to decrease benefit payments to workers under these circumstances.

Apportionment

This summer the Nebraska Supreme Court more or less ignored these arguments in the Picard case. In Picard the Nebraska Supreme Court found it was error to award an injured worker additional loss of earning power benefits for an injury to a different body parts because they were working for the same employer at a higher wage.

Chambers is distinguishable from Picard in that Chambers didn’t involve apportioning benefits paid from a prior injury. Mississippi law is also different from Nebraska law in that there is a formal presumption that an employee who is earning more after an injury does not have a loss of earning power. At least in cases where there was prior payment of loss of earning power, courts in Nebraska are still clearly looking at how an injury effects your ability to earn wages and not solely earned wages post-injury in determining loss of earning power.

I believe the Chambers decision adds some persuasive weight for employees arguing that overall increases in wages should not factor into determinations about loss of earning power. It’s not unusual to try workers compensation cases a 2-3 years after a date of injury. From 2018 to 2021, the average wage in Nebraska has increased nearly 10 percent. Chambers stands for the proposition of law that increases in wages in line with the overall increase in wages should not factor into a loss of earning power analysis.

Close cases with two member LOEP

While a 10 percent different in wages may seem relatively insignificant it may mean the difference between an employee being found to have a 30 percent loss of earning power for the purposes of a multi-member impairment and being stuck with compensation for scheduled member impairment for purposes of Neb. Rev. Stat. 48-121(3)

Loss of earning power is determined by a formula that takes wages, education, location and other factors in to account. Changes to the variables in the formula can lead to significant changes in loss of earning power. The difference between compensating and injury based on scheduled member impairments or at 30 percent loss of earning capacity can add up to 45-60 weeks of benefits which for an employee earning $15 per hour for a 40 hour week can up to between $18,000-$24,000.

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 Uncategorized and tagged , , , , .

Improvements in workplace safety in Lincoln due to some side-street snow plowing?

Posted on by

Lincoln has been hit with an unusual amount of snow over the last two weeks. Last year, many Lincoln residents would have been stranded at home due to the lack of snow removal on side streets.

But the City of Lincoln announced in November that was partially reversing an 11 year-old city policy of not plowing side streets. The City announced a pilot program to remove snow on some side streets if accumulation topped four inches. The move comes after public outcry last winter about icy conditions in Lincoln’s residential neighborhoods.

Ice, snow, worker classification and slip and falls

Last winter, I blogged about how icy side streets were a workplace hazard for delivery drivers. In my view the risks to delivery drivers has increased since last winter as the COVID pandemic accelerated the rise of online shopping.

Icy streets and sidewalks also create additional legal risks as more delivery workers are misclassified as contractors rather than employees. Employees are covered by workers’ compensation for work injuries, contractors are not. Bluntly, Nebraska courts have tended to side with business in recent decisions about worker classification and workers compensation.

But even if a worker is legally barred from bringing a workers’ compensation claim for a slip and fall injury due to snow and ice, premises owners can be sued if their failure to reasonably remove snow and ice causes on injury. Property owners need to be diligent about removing snow and ice. A worker covered by workers’ compensation can bring a third-party claim if another party besides them or their employer is at fault for their injury.

Doing the right thing despite sovereign immunity

Private individuals and corporations can be sued for failing to remove snow, not so much with local governments. I am somewhat surprised the City of Lincoln changed course, because the City is basically immune from being sued for snow removal. The City is protected by sovereign immunity in general and a specific law immunizing local governments from liability for snow removal in particular. So why did the City of Lincoln, partially “walk back” a fairly long standing policy? I have a few ideas.

One icy side streets create a risk of injury for city employees like police and firefighters. Not only is there a risk of bodily injury, the City would also have to pay for damage to city vehicles. It may make financial sense for the city to plow side streets. Lincoln Mayor is Leirion Gaylor Baird is a Yale-educated, veteran of the elite consultancy McKinsey and Company. In short, she is a wonk. I take the City at their word that they engaging in what amounts to experiment.

But the City could also be responding to popular outcry about icy residential streets. Hey, we live in a little “d” democracy and governments are supposed to respond to popular pressure. I also think it could make sense from a dollars and sense perspective. But I do wonder if residential snow removal is sustainable from a budget standpoint. The City stopped doing residential snow removal in 2009. 2009 was during the so-called “Great Recession.” Lincoln is now suffering through the COVID-19 recession. So even if residential snow plowing could make sense financially and improve occupational safety, there may be pressure to cut the City budget in other places or to cut taxes to pay for additional services.

Lincoln is a prosperous city and I think the choice between clearing snow and ice from side streets and other city services is a false choice, but historically Lincoln city government has been reluctant to raise taxes to pay for additional city services

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 Uncategorized and tagged , , , , , .

When your employer thinks you are lying about your work injury

Posted on by

When an employer fights a workers’ compensation claim, that dispute usually involves some dispute over the medical evidence and or a legal dispute as to whether an employee is covered by workers’ compensation.

But everyone once in awhile, employers deny claims purely because they don’t believe the employee was hurt at work. So, how does this happen and how can an employee protect themselves when it looks like their employer wants to railroad their workers’ compensation claim?

The presumption of fraud and confirmation bias

The insurance industry has grossly exaggerated the prevalence of workers’ compensation fraud.  However the myth of workers’ compensation fraud is ingrained in the popular mind. That fraud myth is particularly ingrained into the human resources and employee health professions. Employee health and HR people tend to be responsible for initially investigating work injuries. Often this presumption of fraud leads management to seek out information about an injury that favors their views. The fancy term for this is confirmation bias.

So how does confirmation bias play out when a work injury is being investigated. Let’s say the injury is unwitnessed, the employee doesn’t exactly recall what time the injury occurred and that the employee had a subpar employee review. All of these facts can be woven into a story about why the injury didn’t happen and/or that the employee just made up their injury.

How an employee can protect themselves

The first thing an employee can do to protect themselves is to immediately report their injury and report it through the required channels.  Legally an employee needs to report the injury as soon as practicable to someone in management

The worker should also make a report in writing via email, text or direct message to document what happened for themself.  It doesn’t necessarily have to be a boss or manager, it can be a co-worker, friend or family member. Anything that would document when you got hurt, where you got hurt and what you were doing.

I want to emphasize that legally you aren’t required to report in your injury in the manner required by employer in order to have a work injury covered in Nebraska. But if you want to win your workers’ compensation case against an employer who doesn’t believe you got hurt, you should do as many of those things as possible as it makes it easier to prove you were hurt at work. The fewer of those things you do, the more expensive, time consuming and less certain it is you will be able to get a good outcome in your workers’ compensation case.

Unfortunately, a denied claim means you should contact an attorney. At least in Nebraska, an attorney has broad powers to investigate a workers’ compensation claim. In practical terms, that means an attorney for employee with a denied workers’ compensation claims can request company documents and even take statements from coworkers, supervisors and managers about why a claim was denied. An attorney can take apart an employers denial and more importantly persuade a court that an employee was hurt at work.

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 Uncategorized and tagged , , , , .

Remote work leading to more back, neck, wrist and arm strain injuries

Posted on by

Doctors report increases of hand, arm, shoulder, back and neck pain that they attribute to poor ergonomics due to office workers working at makeshift at-home workstations during the COVID-19 pandemic.

Should these conditions be covered by workers’ compensation? Absolutely. Repetitive use injuries from white-collar work are covered by workers’ compensation. Work duties need only contribute to, combine with or even just accelerate a medical condition to be covered by workers’ compensation. Granted an injury from poor ergonomics from an office worker could take a bit of lawyering,  but make no mistake these injuries should be covered by workers’ compensation.

But will there be an upsurge in claims from ergonomic injuries due to pandemic-related remote work? I’m not so sure.

Back in 2019, I wrote a post about why office workers don’t claim workers’ compensation for hand and wrist injuries.  Even in a formal office setting, overuse injuries can occur. I came up with five reasons why office workers often don’t make workers’ compensation claims. In short, the reasons I came up with  that office workers don’t claim workers compensation were 1) Belief injuries aren’t serious 2) Unaware that repetitive use injuries covered by workers’ compensation 3) Unclear about causation standards 4) Stigma of workers’ compensation benefits and 5) Costs of work injuries shifted onto privte insurance and short term disability.

I would add two more reasons here in pandemic-ravaged 2021:

White collar workers are unaware of workers’ compensation

If you are blue collar worker, odds are that if you haven’t had a work injury yourself you know someone who has had one. But if you work in a white-collar job and most of your friends and family do the same, odds are you don’t know anyone who has claimed workers’ compensation. Not surprisingly, The Atlantic article that reported on the increase of occupational injuries from poor ergonomics made zero mention of workers compensation as a way to cover the cost of a work injury.

The irony here is that while white-collar workers tend to have more formal education than their blue-collar counterparts, they tend to be less educated about their entitlement to workers’ compensation benefits. Many workers are also confused about the differences between private disability and workers’ compensation benefits.

But even workers who know their rights when it comes to workers’ compensation  they may decide not to claim benefits for other reasons.

Fear of retaliation in a rough economy

Many workers are afraid to turn in workers compensation claims because they fear getting fired. In Nebraska, and in most other states, it is unlawful for an employer to retaliate against you for filing a workers’ compensation claim, but it happens anyway. I think the fear of job loss increases when unemployment increases. Many people who are still employed are rightfully grateful to still be employed. But this gratitude can lead to a don’t-rock-the-boat mentality. As a result, injured workers can end up incurring thousands of dollars in unpaid medical expenses and lost wages, that should be covered under workers’ compensation.

Essential worker or not, if you’re still working your job is important

The pandemic has spread the term “essential worker” into everyday use. But some workers who fall outside of that essential worker category may feel their jobs are less important. I think this is particularly true for office workers who aren’t subjected to the same hazards as health care, delivery, retail and food workers. That feeling that your work is either less important or less hazardous may lead some workers to downplay their injuries and not make workers’ compensation claims. Workers compensation claims have always been stigmatized, but it seems that the pandemic created a new variant on the stigma.

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 Uncategorized and tagged , , .

Supreme Court holds state laws against drug price hosing not preempted by ERISA

Posted on by

The Supreme Court ruled 8-0 that state laws regulating pharmacy benefit managers (PBMs) were not pre-empted by the federal Employee Retirement Income Security Act (ERISA). The substantive outcome and the reasoning on preemption could impact workers compensation issues like opioid prescription abuse and air ambulance charges.

Opioid use

Many states have introduced drug formularies or lists of approved drugs  to limit opioid use and abuse in workers’ compensation claims. Drug formularies are run by pharmacy benefit mangers or PBMs which make their money negotiating discounts between drug companies and drug dispensaries. Critics of PBMs argue that their business encourages higher drug prices so they can make more money on the supposed discount.

One Ohio workers’ compensation official stated that a PBM was “hosing” the state of Ohio with high costs in their drug formulary. The new Supreme Court decision could encourage states to adopt formularies in workers’ compensation without having to worry about unfair drug prices.

I emailed fellow workers compensation Jon blogger, Jon Gelman, that I was semi-pleasantly surprised about the decision on PBMs. My feeling that the federal rock of preemption will usually crush the state scissor of state workers’ compensation laws is a common feeling in the plaintiff’s bar. But Justice Sotomayor’s no-nonsense opinion in the Rutledge case, indicated that the supposedly broad pre-emptive effect of ERISA isn’t as broad as commonly believed.

Air ambulance charges

The Rutledge decision gives me some hope about another conflict between federal law and state workers’ compensation law – air ambulance billing. The issue with air ambulance billing poses the federal governments right to regulate air travel charges through the Airline Deregulation Act (ADA) against the right of a state to regulate insurance charges. The issue is important because of the high cost of air ambulances.

Federal and state courts have almost uniformly held that the federal law on air travel preempts state law on what air ambulance providers can charge. But the Supreme Court has used the preemption language in ERISA as a model for interpreting airline deregulation law.

The Supreme Court may soon take up the issue of whether state regulation of air ambulance charges is preempted by federal law. The air ambulance industry has filed an appeal with the Supreme Court asking to overturn a Texas state supreme court decision that held that state laws regulating air ambulance charges was not preempted by federal law. Since there is now a conflict between jurisdictions involving a large state like Texas, the Supreme Court may take up the issue.

One interesting fact about Texas workers’ compensation law is that they do not fee schedule air ambulance charges. The Texas Supreme Court used that fact to distinguish their decision from other decisions involving state laws that were preempted because of a fee schedule. Personally, I think if Texas won in the Supreme Court because of the fee schedule issue, that would be a hollow victory. I believe the use of fee schedules benefits workers because it keeps disputes between payors and medical providers out of court.

Mc Carran-Ferguson

Workers’ compensation laws are commonly regarded as insurance laws, so there is a strong argument that they should not be preempted under the McCarran- Ferguson Act. That law holds that insurance regulation is a state concern. McCarran-Ferguson is often referred to as “reverse preemption” law . A concurring opinion in the Texas Supreme Court air ambulance discussed McCarran-Ferguson in depth. However, the dissenting opinion in the case held that workers’ compensation was not a law regarding insurance but a law that regulates the relationship between the employee and employer. If the Supreme Court takes up the Texas appeal, it may answer the question of whether workers’ compensation is a law about insurance or the workplace relations? In doing so, it may jolt some long-held assumptions about workers’ compensation.

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 Uncategorized and tagged , , , , , .