Mental trauma from misguided mass shooting drill not covered by workers’ comp., but employer could be subjected to civil claims

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While most employees in Nebraska can’t collect workers’ compensation for purely mental injuries, a recent “mass shooting drill” by a misguided employer should serve to remind employers than employees can sue their employers outside of workers’ compensation in some circumstances.

“I tell my clients you can’t just shoot your employees.”

I remember a longtime management defense lawyer telling me that about the liability-limitations imposed by the so-called exclusive remedy provision of workers compensation.

I think the same goes for pretending to shoot your employees. Those employees could be able to skirt workers’ compensation laws and sue their employers for infliction of emotional distress.

There may that kind of case here in Nebraska.

When workers’ compensation isn’t the exclusive remedy for employer stupidity

The Omaha World-Herald reported on Thursday about a mass shooting drill conducted by Catholic Social Services. The drill included a questionable person shooting blank rounds out of a gun in the office. The drill also involved staged causalities who appeared wounded and bloody.

Even the conservative Douglas County attorney called the drill a “bad, bad idea.”

I first wrote about these mass shooting drills in 2019 when I read about a mass-shooting drill at an Indiana school. That drill involved shooting people with paintballs. I wrote that while the physical injuries from being shot with a paint ball would be covered, the mental trauma from being in that drill would not be covered under Nebraska workers’ compensation.

In Nebraska, only first responders as defined by law, are covered by the Nebraska Workers’ Compensation Act for mental trauma injuries. A social worker for a non-profit or a teacher would not be covered under the Act.

But, and maybe I’m burying the lead here, if a workplace injury isn’t covered by workers’ compensation then an employee or their survivors can bring a tort claim. So, if an employee is exposed to mental trauma that isn’t covered under workers’ compensation, the exclusive remedy of workers’ compensation doesn’t bar that claim.

The exclusive remedy of workers’ compensation limits the amount that employees can recover in exchange for not having to prove fault. Employees are limited to having medical bills paid and getting a percentage of their income paid based on how a work injury effects them. In a tort or civil case, employees would have a theoretically unlimited recovery. In railroad injury or FELA cases, where injured workers do have to prove some fault, those recoveries can dwarf what an employee could collect under workers’ compensation.

Tort claims for employee emotional distress claims

Now just because an employee isn’t barred by the exclusive remedy of workers’ compensation from suing their employer, doesn’t mean they automatically have a claim. Employees would still have to show that their employers has a duty to protect them from mental distress, they breached that duty and that the breach of duty was the proximate cause of the mental distress.

I’m not aware of any tort claims that have been brought to address the effects of mass-shooting drills. But based on the reactions to Catholic Social Services mass shooting drill, I would feel somewhat confident about a such a claim surviving a motion to dismiss.

While mass shooting drills gone bad garner attention when it comes to workplace torts, retail clerks are routinely subjected to mental trauma from actual violence. I think these workers should be covered under workers’ compensation for mental trauma. But non-unionized retails clerks lack the political clout of law enforcement. Maybe civil cases will be the sole avenue to address this issue for the foreseeable future.

The benefit of workers’ compensation over tort or civil claim

But civil litigation is risky and more generally more expensive than workers’ compensation. In my experience workers’ compensation, at least in Nebraska, is often a better deal for plaintiff’s than a civil case for a non-catastrophic injury.

The role of unions in preventing emotional distress claims

Another way to regulate workplace safety and (employer stupidity) are unions. Teachers’ unions have pushed back against the kinds of mass-shooting drills done by non-union employers like Catholic Social Services. Unions could be part of the solution for retail worker as well. Recently, workers at Starbucks have won an increasing number of union elections. A Chipotle outlet in Michigan also recently unionized. I hope increased retail worker organizing can protect retail workers for the effects of violence — both physical and mental.

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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Wearable technology in workers’ compensation: so-so for safety, great for denying claims

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Wearable technology has dubious effects on workplace safety, but it allows employers to more closely monitor employees which can be helpful in reducing workers’ compensation costs for employers. Expect more wearable technology in the workplace as workplace surveillance expands.

Wearable” technology is touted by workers’ compensation insurance “thought leaders” as the greatest thing to happen to the industry since their successful decades long assault on state workers’ compensation laws in legislatures across the nation.

So what’s so great about wearables from an insurance perspective? Two studies show exoskeleton technology can actually cause more and more severe injuries.

I think it’s the surveillance. A recent Wall Street Journal article showed the number of employers surveilling their employees on the job has doubled from 30 percent to 60 percent over the last two years.

According to article, which didn’t interview anyone speaking from a labor or worker-side, workplace safety is one “legitimate” reason to monitor employees.

Here’s what I think workplace safety means in the context of workers’ compensation.

Surveillance and employment risk

Employees only collect workers’ compensation for injuries incurred arising out of their employment. In other words, even  if you are on the clock on company premises and you get hurt at work, you may not get workers’ compensation if 1) your injury wasn’t caused by your work duties or 2) you were doing something in substantial deviation from your job duties when you were hurt,

Wearable technology allows employers to monitor when an employee is working and not working. Employers such as Amazon use technology to monitor their employees. Wearable technology makes it easier for an  employer find out whether an employee was (allegedly) deviating from their employment when injured. (Hence giving the employer/claims administrator/insurer another excuse to deny a claim)

Wearables, surveillance and fault in workers’ compensation

Workers’ compensation benefits are supposed to be pay limited benefits regardless of fault. I believe arguments an employee was injured by deviating from their employment duties essentially backdoor fault into no-fault workers’ compensation laws.

Wearables provide another means to sneak employee fault back into workers’ compensation. Wearable can allegedly be used to find out ways to reduce injuries and coach employees to do jobs in a safer manner. But what if an employee is injured by doing a job that contradicts how the wearable technology thinks a job gets done? Why wouldn’t an employer/insurer argue that an employee was deviating from their employment duties or even violating a safety rule by performing a job “the wrong way”?

I question whether a workers’ compensation judge would accept such a conclusion. This is particularly true if the safety data generated by the wearable was deemed to “confidential” by some third-party vendor.

But that assumes a case goes to trial. In the meantime an injured worker would be waiting for months for a hearing with no income and unpaid medical bills.

Even if judges initially reject employer arguments about why workers’ compensation claims should be denied based on data from wearables, it doesn’t mean that employers/insurers won’t continue to make those arguments until they gain some acceptance. 

The Great Resignation, Quiet Quits and employee surveillance

Employers and their mouthpieces are lamenting the Great Resignation and so-called “quiet quiting” based on the COVID-19 pandemic. Employee monitoring gives management information about who is allegedly slacking off and who should get laid off if the job market cools. That same technology will also be used to deny or limit payment of workers’ compensation benefits to employees hurt on the job.

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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FMLA interference claims create a more level playing field for fired workers

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An employee who is fired during FMLA leave may be able to make an FMLA interference claim. An interference claim gives an employee a chance to legally contest their termination without having to prove the employer’s motive. FMLA interference claims also shift important burdens of proof to the employer.

One reason why employment law cases are so difficult for employees is that typically they have the burden to prove that they were fired or otherwise discriminated against for an unlawful reason.  

Employers of course almost always deny illegal motivations and there is an entire “industry” – HR — devoted to helping companies cover their tracks on a termination.

But while an FMLA interference claim may not be easy for employees, employees have a more level playing field in an FMLA interference claim than they do in a typical employment law case.

What is FMLA interference?

In an FMLA interference claim, so long as an employee is eligible for FMLA, it is unlawful for them to be fired by their employer if the reason is connected to them taking leave. The employee doesn’t need to prove anything about employer motivation.

Secondly, once the employee shows they are eligible for FMLA, then the employer has the burden to show the termination was unconnected with them taking FMLA leave.

In fact, an employer need not even terminate an employee to be liable for FMLA interference. Counting FMLA protected leave as unexcused absences can constitute FMLA interference.

Interference v. retaliation

Cases involving suspected misconduct by an employee out on FMLA can show the difference between a retaliation and interference claim. An employee suspected of misconduct by their can still survive a motion to dismiss if they can show part of the reason they were terminated went to them taking FMLA. For example, maybe they were fired for attendance issues and some attendance points were wrongly deducted.

In contrast, an allegation of employee misconduct can give an employer an honest or good faith reason to fire an employee. That good faith reason is often enough to get a retaliation case dismissed even if the suspected employee misconduct turns out not to be true.

Another common pitfall in any kind of retaliation case is that the person who made the decision to terminate an employee, may not have notice that an employee engaged in a protected activity. This is especially true in FMLA cases where companies outsource FMLA leave administration. Again, an interference claim dispenses with that issue for an employee.

How employers defend FMLA interference claims

There are two pitfalls to an FMLA interference case for an employee. One are they eligible for FMLA leave for either for their own serious health condition or take care of a family member with a serious health condition.  In order to be eligible an employer needs 50 employees within a 75 mile radius and employee needs to employed for year and to have worked 1250 hours. Employees are also eligible for FMLA to take care of a newborn or adopted child or take care of family member who is a veteran with a service-connected medical condition as defined by law.

Secondly, employers can also show that they would have fired the employee regardless of their FMLA claim. Employers don’t like this standard because it places the burden of them at summary judgment to show almost beyond a reasonable doubt that they fired the employee for reasons not connected with them taking FMLA. If an employer meets their burden it’s going to be on a no-call, no-show type termination or for clear misconduct by an employee.

Employers can also defeat FMLA interference claims with proof the employee’s job would have been eliminated in a mass layoff or in a plant closure. (Employees may have a WARN Act claim in such a case)

Easier burden, but smaller damages?

At least in the states like Nebraska and other states within the 8th Circuit Court of Appeals, there are no compensatory (mental distress) damages available for violations of the FMLA like there are in a Title VII and in cases under the Nebraska Fair Employment Practices Act. FMLA cases also lack punitive damages.

But employee can still receive attorney fees and back pay for FMLA cases. Additionally employers need to prove why an employee is not entitled to a liquidated damage equal to back pay if a jury finds they interfered with an employee’s FMLA rights. Plaintiffs can also get front pay awarded by a judge in some circumstances.

So, yes an employee gives up some potential compensation in an FMLA case versus many types of discrimination case. But employees have a better chance of winning an FMLA interference claim than a typical discrimination case.

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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“Worker Flexibility and Choice Act” shows how worker misclassification is destigmatized, normalized

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The WFCA will create all sorts of problems with unemployment insurance claims handling and more litigation over waiver enforceability. While it may not impact workers’ compensation directly, it will likely indirectly suppress workers’ compensation claims as employees may not believe they are covered even if they are

The so-called “Worker Flexibility and Choice Act” (WFCA) introduced by Rep. Henry Cuellar (D-Texas) and Rep. Elise Stefanik (R-N.Y.) would create a new class of worker with fewer rights than a typical employee and would allow more employers to get in on the employee misclassification game.

The WFCA would allow workers to “agree” to what amounts to an independent contractor status where employers wouldn’t play employment taxes like unemployment, social security or Medicare, but workers would still be covered by anti-discrimination laws.

Importantly the WFCA would also pre-empt state laws. This legislation is a bad idea for a lot of reasons.

Unemployment insurance

During the mass layoffs in the early part of the pandemic, Congress authorized separate unemployment insurance for gig employees, PUA, who weren’t otherwise eligible for unemployment insurance.  But when states had to decide whether a worker was eligible for regular unemployment or PUA it just lead to more delays for already overwhelmed state agencies trying to determine eligibility for unemployment benefits. If something like WFCA becomes law before the next recession, expect even more delays for unemployment.

Maybe the pre-emption under WFCA would make those decisions easier as it would be clear that those workers wouldn’t be eligible for unemployment benefits.  But if the WFCA waiver is interpreted similar to arbitration waivers (see below), state agencies may argue correctly argue that they aren’t bound by such waivers.

Litigation over enforceability of waiver of employment law and tax

Proponents of the WFCA will argue that workers will have to voluntarily agree to contractor status. This “agreement” will probably be the similar to how employees “agree” to arbitrate employment disputes through checking a box on a form during an “onboarding” process. Unfortunately, arbitration “agreements” are routinely upheld by courts. I fear the same will happen if something like WFCA becomes law.

Workers’ compensation?

Workers’ compensation laws are state laws, so the WFCA shouldn’t directly impact workers compensation. But the same impulse behind WFCA is at work in the states. Jeff Blackwell recently wrote about Alabama passing a qualified marketplace contractor law that would exempt gig workers from workers’ compensation laws.

But even if federal laws that allow employers to misclassify workers don’t directly impact workers’ compensation, my belief is that they will discourage employees from bringing claims anyway. They will indirectly suppress workers’ compensation claims. Workers who think they are contractors tend not to bring workers’ compensation claims.

What about employment law claims?

Yes, the WFCA does allow for discrimination claims. But the fact that employers are willing to allow those claims for certain kinds of contractors underscores how anti-discrimination law is skewed towards employers.

Big picture

Supporters of the WFCA,  seems to think that the problem with employee misclassification isn’t that workers are being misclassified as contractors, it’s that not enough employers can misclassify their workers as contractors. The Guardian recently ran a series about how former Obama administration officials used their influence to lobby for Uber in the mid-2010s. These Democratic operatives helped normalize the gig economy by giving it a strong bi-partisan sheen. As we move into the 2020s, the employee misclassification normalized and de-stigmatized by the gig economy is allowing more employers to legitimately get into the misclassification game.

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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Work hardening acknowledges some of the uncertainties of return to work after a work injury

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Work hardening is usually a good idea to help employees return to work after an injury. But not all employees have access to this helpful tool after a work injury.

When does an inured worker heal from a work injury?

What kind of restrictions does an injured workers have from a work injury?

What kind of work will an injured worker be able to do with after an injury?

There are no easy answers for these questions. Unfortunately, I believe the insurance industry likes easy answers to these questions. They particularly like those easy answers that lead them to stop paying temporary benefits and return workers back with no restrictions based on medical evidence they have helped massage or produce.

But one semi-helpful practice that accounts from some shades of grey in the return-to-work process is work hardening.

What is work hardening?

Work hardening is when a medical doctor releases an employee to go back to work part-time and then ratchets up hours and duties over the course of a few weeks or months.

Work hardening stands in contrast to what I call return to work by ambush where an employee gets suddenly shifted from temporary total disability to release to return full duty and/or with no restrictions.

Work hardening allows someone to ease back to into work. Done properly an employee should also be able to collect temporary partial disability benefits while they are working reduced hours during work hardening.

Who gets work hardening?

I see work hardening with larger employers who have some ability to accommodate lighter duty positions. I also see work hardening with employees who are still employed by the employer where they were injured.

This leaves many employees out. Workers for smaller firms often miss out on work hardening. Employees working for employers without light duty may not get work hardening.

More on who does and doesn’t get work hardening.

As stated above, employees generally need to be still be employed to get benefit from work hardening. Many workers don’t have this luxury. A recent Texas Department of Insurance study, shows that an majority of injured workers aren’t working for their employer a year from injury.

One reason is that recovery from an injury often takes longer than the required 12 weeks of job protected leave under the Family Medical Leave Act. The Americans with Disabilities Act makes unpaid leave a reasonable accommodation. But at best ADA leave is a short-term extension of FMLA leave. (I won’t even address workers’ compensation retaliation in this post, but it also plays a factor)

But as I’ve wrote previously, unions often negotiate return-to-work programs that incorporate work-hardening. Heavily unionized industries like meat packing usually have work hardening as well. But even if a union doesn’t expressly negotiate return to work issues, unionized employers and unionized industries typically have relatively liberal leave policies that allow employees to maintain the employment relationship during an extended recovery from a work 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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The hidden variable of employer perception of disability in workers’ compensation

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If you believe your typical insurance adjuster, the only way an employee can get paid money benefits is if a doctor has assigned permanent impairment and/or restrictions for a work injury.

At least in Nebraska, a competent workers’ compensation lawyer would tell you that a judge can take a workers’ testimony about their injury and ability to work when deciding to pay money benefits for either temporary or permanent disability.

But what often goes unmentioned in this discussion, is how employer’s perception of their injured workers’ ability to work factors into decisions to pay money benefits to injured workers.

So how does what an employer thinks about an employee’s injury factor into how money benefits get paid in Nebraska workers’ compensation cases?

Temporary disability

Employees are paid temporary disability while they are under doctors’ treatment, recovering from an injury and unable to work because of a work injury. Conventional wisdom holds that temporary disability ends when a medical doctor states an employee is at maximum medical improvement or MMI.

But who really decides whether an employee can work or not? The employer. In practice, nurse case managers will coordinate with an insurer/claims administrator and employers to sync the MMI date with when the employer thinks they have a job for an employee.

“Personal conditions” and temporary disability

Often times an employee will be unable to do their job after the mythical MMI date. (MMI is something decided by a judge anyway) Sometimes employers/insurers will argue that an employee is unable to work because of personal condition. In reality an employer may have pushed an employee to return to work too quickly and/or pushed for inaccurate work restrictions.

But regardless of whether an employer believes an employee can’t work because of a work injury or a non-work related injury, they still believe that the injured employee is unable to work for them. Ultimately, it’s up to a workers’ compensation court judge to decide whether the condition preventing an employee from working is related to work or not. However, the decision to pay temporary benefits turns in a substantial part about the court’s view of how the employer views the employee’s ability to work.

Permanent disability

Per Neb. Rev. Stat. 48-121(3), back injuries, head injuries, mental injuries, burns and multiple body part injuries are paid on how the injury effects a persons ability to earn wages. An employer admission that an employee can’t work for them anymore can often be evidence of what is more formally called loss of earning capacity. Even an admission that an employee who is still employed at the same or higher wage is working a lighter job can be evidence of loss of earning power.

Vocational rehabilitation benefits

Employees can receive money benefits if they are participating in a vocational rehabilitation program. Again the decision about whether an employee gets vocational rehabilitation benefits often hinges on whether an employer can or is willing to accommodate the permanent effects of an employees injury. (Employees can also get vocational rehabilitation for so-called single member injuries like shoulders, knees and feet)

Why employer perception of employee work ability sometimes gets overlooked in workers’ compensation cases.

I have had five workers’ compensation trials this year. Employer representatives only testified in two of those hearings. In two of my trials, my client was the only live witness. I think this is typical of how trials usually go. Employee testimony is usually used to help the court understand the basis for the medical reports that are introduced into evidence before testimony and to judge the credibility of the injured workers.

Sometimes employers are almost irrelevant to the issues the court needs to decide. But sometimes, I think defendants keep the employer off the stage in order to focus attention on what they perceive as a flawed plaintiff and to keep the focus off potentially questionable conduct by the employer.

Employers often start their attack on a plaintiff’s credibility with a deposition. Depositions are expensive, but most defendants are insurance companies or self-insureds with deep pockets. Plaintiffs in workers’ compensation claim don’t have deep pockets, so a different cost-benefit analysis applies when deciding whether the depose an employer witness.

But a plaintiff may be able to subpoena that witness to testify at trial for far less cost and should be able to use written discovery like interrogatories, requests for production and requests for admission to conduct an adverse or hostile examination to prove up a clients case for workers’ compensation benefits with admissions from employers.

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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U.S. v. Washington: A rock, paper, scissors theory of federal preemption of workers’ comp. laws?

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Summary: When it comes to the interaction of federal law and workers’ compensation, federal laws invoking national security are the rock that crushes state law scissors, but federal laws regulating the domestic economy more are more like paper which cut get by scissors.

The Supreme Court stuck to intergovernmental immunity and stuck it to ill workers at the Hanford nuclear site in eastern Washington state.

In a 9-0 decision written by now retired Justice Stephen Breyer the court held in United States v. Washington, that Washington state could not enact a presumption of compensability under their state workers’ compensation act for workers made ill at the Hanford nuclear site. The court ruled that the presumption unlawfully discriminated against the federal government.

For 30 years the Department of Defense and Department of Energy produced plutonium for nuclear weapons at the Hanford site. The state of Washington passed legislation to make it easier for workers at that site to collect workers’ compensation benefits under their state law. The federal government challenged the law. Ultimately the court relied on the landmark case of McCulloch v. Maryland to hold that Washington’s law impermissibly discriminated against the federal government.

A decision of limited impact?

Justice Breyer’s opinion included no discussion of the merits of presumptions in workers’ compensation or the substance of workers’ compensation laws at all. I was somewhat concerned about where such discussion could lead. The United States Supreme Court had addressed workplace injuries cases involving nuclear plants in the Goodyear Atomic and Silkwood cases.

In both cases the court had rejected arguments from employers that certain workers’ compensation laws and tort laws were impermissible state regulations of an industry that was the regulatory responsibility of the federal government. But there were dissents in both Silkwood and General Atomics that would imply presumptions of compensability would be impermissible burdens on the federal government Fortunately, for worker-advocates, those dissenting opinions weren’t addressed by the court – even in a dissenting opinion.

An outlier decision?

I believe United States v. Washington is an outlier when it comes to the interaction of workers’ compensation laws and federal laws. Recently, the court declined to hear a Minnesota case that would have resolved the issue of whether states can require insurers to pay for medical marijuana. Marijuana is illegal under federal law and many states believe that law preempts state’s from requiring it to be covered under workers’ compensation laws.

Last year the court also declined to resolve a conflict between states and federal circuits as to whether the federal Airline Deregulation Act (ADA) preempted state laws requiring air ambulances charges to be paid at discounted rates under state workers’ compensation laws.  The court also declined to hear challenge under the ADA from airlines against a Washington state law requiring paid leave for airline workers.

So why did the Supreme Court take up the Hanford case? I believe because of the national security implications of the case.

Federal supremacy and national security

Though Justice Breyer didn’t expressly mention national security in his opinion in United States v. Washington, the federal government clearly alluded to it in their brief.  The federal government brought up Hanford’s role in the development of the atomic bomb during World War II.

Interestingly enough, in his last reported decision as a Supreme Court justice, Breyer penned the majority opinion in Torres v. Texas Department of Public Safety. In that case, a 5-4 majority held that states did not have sovereign immunity from private suits under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

In Torres, Breyer wrote that the authority of Congress to build and maintain the armed forces under Article I, Sec. 10 of the Constitution overrode state sovereign immunity when it comes to suits against states under USERRA.

Though Torres and United States v. Washington lead to opposite outcomes for the employees involved in the case, they both demonstrated how the “rock” of national security beats the “scissors” of state sovereignty when it comes to the Supremacy Clause. Recent Supreme Court decisions relating to the interaction between workers’ compensation law and federal law regulating the domestic economy, show that those federal interests are more like “paper” which gets cut by scissors.

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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Mental health care provider shortage hits injured workers in rural Nebraska particularly hard

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The shortage of mental-health care providers in Nebraska makes it harder for rural residents to get prompt care for mental injuries on the job; harder to prove cases for mental injury at work

Nebraska has a shortage of mental-health practitioners that is particularity serious in rural areas. This shortage of mental health providers delays and impairs the recovery of injured workers in Nebraska who suffer a mental injury as a result of physical injury or a mental injury on the job. It also makes these claims harder to prosecute.

Quick Review: Who gets mental injury benefits in Nebraska

Unless you are a first responder as defined by Neb. Rev. Stat. 48-101.1, an injured worker can only be covered for a mental injury if it is related to a physical injury. This can happen with any kind of injury, but in my experience it is most common with head injuries.

First responders in Nebraska, can collect for purely mental or “mental-mental” injuries. The definition of first responder has been generally expanded from police and firefighters to include corrections officers and mental health technicians in our state mental hospitals.

Volunteer firefighters are also eligible for workers’ compensation benefits including mental-mental benefits.

How the lack of mental health care providers effects a workers’ compensation claim

I believe the first drawback for injured workers is delayed treatment. Delayed treatment can lead to more severe permanent injuries

Maybe when everything goes smoothly in a workers’ compensation case, which usually isn’t happening if an injured worker is calling a lawyer, a delay in treatment can lead to longer payment of temporary total disability benefits.

But even assuming those temporary benefits are fair, workers’ compensation benefits aren’t designed to fully compensate employees for work injuries. But workers give up full payment for the promise of prompt payment of benefits. But if mental health practitioners aren’t available, injured workers will not get prompt medical treatment for a mental injury.

The lack of mental health providers in rural areas deprives rural workers a substantial part of the so-called grand bargain of workers’ compensation – prompt payment of defined benefits for work injuries.

Another element of the grand bargain are less formal rules of evidence and procedure that should make it easier to prove cases for injured workers. But again, the lack of mental health providers in rural areas makes it harder for rural workers to take advantage of that aspect of the grand bargain as well.

But even if mental-health practitioners are available, they may not qualify as expert witnesses under Nebraska workers’ compensation law.

Many mental health treaters aren’t qualified to testify by report

In Nebraska only a psychologist or a medical doctor is qualified to testify to submit a written report about a mental injury in a workers’ compensation case. The inability of physicians’ assistants or nurse practitioners to testify by report is already a problem for Nebraska residents in more remote areas of the state. The same issues would apply to counselor who isn’t a psychologist who treats an injured worker for a mental injury.

But while the small town nurse practitioner and counselor who treat mental work injuries don’t qualify as so-called Rule 10 experts in the Nebraska workers’ compensation court, the hired gun MDs and PhDs in Lincoln, Omaha or Denver who insurers and claims administrators send rural workers to do qualify as Rule 10 experts.

Lawyers for injured workers can sometimes fix these issues. Sometimes MDs or psychologists will endorse the findings of counselors. Other times a plaintiff’s lawyer can arrange for a medical examination. But neither of those approaches is fool-proof when it comes to litigation. But even when those tactics work in a case, they often don’t address the problem that an employee is not receiving prompt mental health treatment when it is needed.

Other solutions?

A lawyer would be free to call a counselor to testify live at a workers’ compensation trial, but that depends on the counselor’s willingness to cooperate in litigation. (Sure, you can subpoena a witness, but that’s not a great option.)

Congress looks likely to pass increased funding for mental-health in response to publicized mass-shootings in Uvalde, Texas and Buffalo. Hopefully the funding is adequate to help address the mental-health care provider shortage in Nebraska.

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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