Tag Archives: Benefits

Don’t Go It Alone

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It’s fitting that today’s guest post about the difficulties of representing yourself in a workers compensation case come from New York City lawyer Richard Cahill Jr., from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Last month I had the privilege of travelling to New York City. I’ve never used the New York City subway or commuter rails before. I had some challenges navigating those systems typical to someone from Nebraska that a New York city resident would either find funny– or annoying if I was holding up a turnstile. Point being, being an injured worker is kind of like using the New York subway for the first time. It’s confusing and hard to find good information. But the consequences for inexperience or a lot different. Because of my inexperience with the New York City subway, I overpaid for an MTA card and wasted 15 minutes because I took the wrong line to my hotel.

An inexperienced self-represented claimant in a workers compensation case themselves thousands of dollars and miss out on needed medical care. The takeaway here is that our firm, along with most other reputable firms representing injured workers, will give you a free consultation about your case and whether you need a lawyer or not.

An injured worker walked through my door the other day frustrated beyond belief. He had been representing himself on his compensation claim for his back injury. He thought he did not need a lawyer and could handle it himself.

The insurance company accepted the claim and paid this worker only a fraction of what he was actually entitled to, though that was not the issue the client wanted to discuss. He did not even realize that he had been short changed.

What he wanted to discuss was getting back surgery. His doctor requested a laminectomy, but the insurance company told the doctor and the injured worker that they were not going to authorize it or pay for it. This man had been suffering terrible back pain for nearly six months and his surgery was never scheduled.

The injured worker was shocked when I told him that the insurance company did not have to give authorization — this surgery was already authorized under the Board’s Medical Treatment Guidelines. The insurance company knew this of course, but seemingly played ignorant to avoid paying for the needed surgery.

When I then told him that he could not only have his surgery, but also had been paid less than half of the indemnity payments to which he was entitled, the gentleman shook his head in frustration and said, “I shouldn’t have done this alone.”

How right he was. The New York Workers Compensation system is extremely complicated. Insurance companies know the system well and often do not tell unrepresented injured workers details that matter, often while telling the injured worker that they are acting in their best interest.

Do not go it alone.  At Pasternack, Tilker, Ziegler, Walsh, Stanton, and Romano, with more than eight decades of experience in defending the rights of New Yorkers, we help clients get the justice they deserve.

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 , , .

Discount Rate And Life Expectancy: What Most People Forget When Valuing A Workers’ Compensation Case

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What’s my case worth?

I hear that question a lot when I meet a new client. In a workers’ compensation case I tell them it depends on many factors; How much were you earning when you were hurt, what part of your body was injured, how severely you hurt, where you live, how much education you have, whether you can return back to your old job, etc.

There are a lot of variables. But in cases where an employee has some reasonable chance of being found to be permanently and totally disabled, in other words unable to find work from their work injury, there are two constants effect the value of any settlement: discount rate and life expectancy.

Discount rate is synonymous with the time value of money. In short, a dollar today is worth more than a dollar in the future. This is important in workers compensation because if a worker is found to be permanently and totally disabled then they will be paid weekly benefit checks for the rest of their life. Under Nebraska law, that benefit check will not increase over time. The question then becomes how much will the value of that money decrease overtime. The discount rate is the expected return on investment on the money. The higher the expected return on investment, the higher the discount rate. But the higher the discount rate, the less a lump sum settlement is worth in present dollars.

An award of permanent and total disability is a form of a pension. Abnormally low interest rates in the aftermath of the financial crises have raised concerns about investment returns for pensions. The Nebraska Workers Compensation Court has used a 5 percent discount rate to value awarded permanent and total disability benefits for at least the last 12 years. But the expected rate of return on investments, as measured by interest rates of declined over the last 12 years. Lump sum payments, like workers compensation settlements, based on a 5 percent long term interest rate undervalue those payments.

For example, a 30 year US Treasury bond yields roughly 2 ¾ percent. If a 50 year-old worker earning $600 per week is found to be permanently and totally disabled, the present value of an award of permanent and total disability would be $334,000 using the 5 percent discount rate and using the court’s life expectancy tables showing a 31.4 year life expectancy. But if the court used the 30 year bond yield as the discount rate, that same award of permanent and total disability would be worth $439,000.

The issue of discount rate and case valuations isn’t widely discussed in Nebraska, but it was a contentious issue in the United Kingdom when the government cut their discount rate in personal injury claims, called the Ogden rate, by 3.25% in February 2017. The Ogden rate was increased by .75-1.75 percent in September 2017 under pressure from insurance companies.

The other variable in valuing an award of permanent and total disability is life expectancy. The Nebraska Workers Compensation Court uses a general life expectancy table to value awards of permanent and total disability that doesn’t vary by gender or nationality/race. The CDC breaks down life expectancy along those lines. Men and African-Americans have shorter life expectancies so they would actually benefit from the use of the Nebraska Workers Compensation Court life expectancy tables. Women and Hispanics tend to live longer so they would not benefit by the use of the court tables. For example, a 50 year-old Hispanic woman is expected to live 35.9 years whereas the Nebraska Workers Compensation Court just assumes a 50 year old has a 31.4 year life expectancy.  Use of the court’s life expectancy tables for a 50 year-old Hispanic woman earning $600 per week at the time of her injury could undervalue an award of permanent and total disability by about $18,000.

But workers who have a reasonable chance of being found to be permanently and totally disabled have other factors to think about when it comes to valuing any settlement of their claim. First, an insurer/employer only has to pay weekly benefits rather than a lump sum of money if a court finds a worker is permanently and totally disabled. They are free to use whatever discount rates and life expectancies they chose in valuing a claim for a settlement.  Court rules about discount rates and life expectancy only come into play when an injured worker wants to take a lump sum settlement on an awarded finding of permanent and total disability.

Secondly many employees who could potentially be awarded permanent and total disability benefits are also awarded social security disability benefits. Social security disability benefits payments can be reduced or offset by any workers compensation benefits received. An offset can have the practical effect of capping the value of any settlement based on the probability of a worker being awarded permanent and total disability benefits. 

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

This entry was posted in Workers' Compensation, Workplace Injury and tagged , , , , .

Nebraska Fails To Increase 2018 Mileage Reimbursement Rate

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Mileage reimbursement for injured workers in Nebraska stays flat in 2018 despite increase in IRS rate

Injured workers travelling to medical appointments and vocational rehabilitation programs in Nebraska will not see an increase in reimbursement for mileage even though the Internal Revenue Service reimbursement rate will rise by $.01 per mile to $.545 per mile starting on January 1, 2018.

In a press release, the Nebraska Workers Compensation court stated the mileage re-imbursement would stay steady at $.535 per mile consistent with the reimbursement rate for Nebraska state employees. The failure to increase mileage rates will particularly impact injured workers in rural areas who need to travel to urban areas to seek treatment or get examined by specialists. The week before Christmas I travelled to the Nebraska Sand Hills region to visit a few clients. I visited a client in Ord, Nebraska who has to see a specialist in Kearney, Nebraska. The failure to raise the mileage re-imbursement rate will cost that client $1.41 per trip.

I visited another client in Loup City, Nebraska who is scheduled for an independent medical examination in Omaha in a few weeks. The failure to raise the mileage rate will cost that client $3.22 for the trip.

Nebraska’s refusal to raise the mileage reimbursement rate for state employees to match the IRS rate is consistent with efforts by the Ricketts administration to reduce state employment costs by a hiring freeze for state employees and end cost of living increases for non-unionized state employees.

The Nebraska Workers Compensation Court also announced the maximum benefit rate will increase from $817 per week to $831 per week. Unlike the mileage rate, the maximum benefit rate is set by statute in Nebraska. In Nebraska we take for granted that the maximum benefit rate will generally increase over time. But that isn’t the case in every state. In 2017 a judge in Alabama ruled that their state’s workers compensation system was unconstitutional because it had not increased the maximum benefit in nearly 30 years.

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

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Workers Compensation for the Work Camper

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The Washington Post ran a feature story about “Work Campers” – senior citizens who live in campers and travel around for temporary jobs. The story noted that many, if not most, work campers were forced into the lifestyle by inadequate retirement savings and Social Security retirement benefits that have lost 30 percent of their purchasing power since 2000. The story also noted that the number of senior citizens working has increased from 4 million to 9 million during that same time period.

The idea of a growing number of senior citizens essentially acting as migrant laborers strikes many as odd and even dystopian. But work campers will present interesting challenges to the workers compensation system.  Though some studies show that older workers are less likely to get hurt on the job, this finding is attributed to older workers having more experience on the job. Since work campers tend to hop from temporary job to temporary job, their chances of injury could increase as temporary workers are more likely to get hurt.

This growing development in the workforce raises many issues for work campers who are hurt on the job because workers compensation laws are state specific so benefits and eligibility for benefits vary from state to state.

Here are some questions that will face work campers when they are injured on the job.

Which states and jurisdictions can you collect benefits?

Employees may be eligible to claim benefits in the state where they are injured, their state of permanent residence, the state their employer is based or the state they were hired. Employees may also be able to claim benefits in multiple states. Employees may also be able to bring claims under the Jones Act or Longshore Act if they were hurt on a ship or a navigable body of water. It helps to get advice from a qualified workers’ compensation lawyer as the decision as to where an employee should claim benefits should be driven by where they have the best chances of recovery.

Which states limit permanent benefits for older workers?

Iowa recently limited workers over the age of 67 from receiving permanent disability benefits for more than 150 weeks. A work camper who was covered under Iowa law and seriously injured could only receive 2 ½ years of benefits.

What is the law on pre-existing conditions?

Many elderly workers have preexisting conditions. In some states those preexisting conditions may impair the ability of an injured work camper to collect benefits. In Missouri employees need to show an injury is a “prevailing factor” in the disability whereas in Nebraska employees merely show the work injury was a “contributing factor” to the disability. In other words, it would be more difficult for a work camper to collect benefits in Missouri for the aggravation of an old injury than it would be in Nebraska.

How do you determine earnings?

Disability benefits are based on earnings or what is called average weekly wage.  The work campers profiled in the Washington Post were fairly low wage employees. However some work camping contracts include provisions for benefits like lodging that have a real monetary value. In some states, like Nebraska, those non-cash benefits can be included in the average weekly wage. Short term work assignments also present difficulties in determining average weekly wage because they might not accurately reflect an employee’s actual earning capacity. There could also be questions as to whether employment is seasonal or weather dependent which could also alter the average weekly wage.

Again, calculations of earnings can vary state by state, so work campers injured on the job should contact a member of WILG who specialize in workers compensation and regularly communicate with workers compensation specialists in other states.

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

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Welders Exposed To Increased Risk Of Parkinson’s Even If Manganese Within Legal Limits

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Welders have an increased risk of Parkinson’s even if manganese exposure is within legal limits according to a recent article in the on-line journal Neurology, which is the journal of the American Academy of Neurology.

Welders who did flux core arc welding in confined spaces were particularly vulnerable to Parkinson’s according to the study. Workers in Nebraska who would attempt to get compensation for manganese exposure would face problems if the onset of symptoms happened after an employee stopped working. A court case in Nebraska held that an employee who didn’t experience symptoms of an occupational disease until after he retired was not entitled to be compensated because he wasn’t earning wages when the injury manifested. Welders and others who are exposed to manganese on a regular basis should recognize the early symptoms of Parkinson’s such as tremors, difficulty sleeping, constipation and loss of smell and report these symptoms to their doctors and employers as soon as possible so they can be treated under workers compensation and receive workers compensation disability benefits.

The study comes on the heel of a final flurry of OSHA rule making at the Obama administration. In May 2016 OSHA finally adopted a silica exposure rule for workers exposed to sand particles which can cause lung problems. Earlier this month OSHA lowered exposure thresholds for berrylium which is another pulmonary hazard, particularly for construction workers.

The example of beryiluim could explain why exposure to manganese levels at supposedly safe levels can lead to occupational disease. Those supposedly safe levels of exposure may not actually be safe. Another explanation about why supposedly safe levels of manganese lead to Parkinson’s could be found in the practices of the coal industry. Howard Berkes of NPR and Ken Ward Jr., author of the excellent Coal Tattoo blog for the Charleston (WV.) Gazette Mail teamed up to report on how coal companies would fudge coal dust level testing to make it appear that miners were exposed to much lower levels of coal dust than they were actually exposed.

OSHA’s rules could also be reversed by Congress under the Congressional Review Act. In 2001, the OSHA ergonomics rule that would have reduced musculo-skeletal injuries was reversed under this law.

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

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Drug Formularies, Part 1: The Rest of the Story

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A drug formulary is a term describing a list of drugs that are covered by an insurance plan. In workers’ compensation, formularies are touted as a way to reduce prescription costs and lead to more effective care. Formularies are particularly pushed as a solution for opioid use and abuse for injured employees.

The headline numbers about the reduction of prescription costs look eye popping. One group of pharmacy benefit managers, the companies that manage drug formularies, claimed a 9 percent reduction in prescription costs over the last year. Ohio, which has the largest state-run workers compensation fund in the country, claimed a 16 percent reduction in prescription costs in the first three years after they implemented a drug formulary. Ohio reported 15.7 million fewer doses of opioids in that time period and a 36 percent reduction in opioid costs.

The Rest of the Story about Drug Formularies

Florida workers’ compensation judge David Langham has asked “what is the rest of the story” about drug formularies. If drug formularies are so effective, then why have they only been adopted in a few states for workers’ compensation?

While drug formularies are a relatively recent development in workers’ compensation, they are well established in the larger world of health insurance. Drug formularies have long been criticized for increasing costs in health insurance plans by reducing prescription usage because costs are shifted to insureds, which forces insureds to seek more expensive care, because chronic conditions go untreated. Overall costs are increased. The costs are also shifted onto insureds who have to pick up the costs for more expensive procedures that could have been taken care of through medication. Cost shifting from the employer onto the employee, other forms of insurance and the government is already a serious problem in workers’ compensation. Drug formularies in workers’ compensation could exacerbate the issue of cost-shifting.

Do Drug Formularies add up?  Cost = Price * Utilization

When you study drug formularies for any amount of time, you run across the equation that drug costs equal price multiplied by utilization. Proponents of drug formularies tout that they can decrease both the utilization and the price of prescription drugs. Ohio has provided detailed information about the decrease in the utilization of certain drugs like opioids because of formularies. However, the decrease in the utilization in opioids cited by proponents of drug formularies coincides with an overall long-standing decrease in the frequency or number of workers’ compensation claims. Fewer overall claims mean less overall utilization, which could explain some of the cost decrease. A better measure of the effectiveness in drug formularies in controlling costs would be measured by looking at prescription cost per claim. So far, drug formulary proponents have been unable to show that data. Even if drug formulary proponents could show that data, there is still the issue of whether reductions in prescription drug costs lead to increases medical costs by forcing injured employees to seek more expensive care that could have been taken care of by prescriptions.

On the price end of the equation, drug formularies are thought to control costs by having pharmacy benefit managers negotiate bulk discounts on prescription drugs. But pharmacy benefit managers have come under fire with allegations that they actually increase drug prices or at the very least are powerless to stop the increases in drug prices. The issue of drug formularies, pharmacy benefit managers and drug prices is complicated and will be addressed in Part 2 of this series.

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

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Why Due Process Matters in Workers’ Compensation

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Two recent decisions from the state supreme courts in Oklahoma and Florida point out that how an injured worker gets workers’ compensation benefits is as important as how much an employee can receive in benefits for a work injury. In the parlance of constitutional law, the how a worker receives benefits is a termed “due process.”

Oklahoma – In Vasquez v. Dillard’s, the Oklahoma Supreme Court found the so-called “Oklahoma option” violated the equal protection clause of the state’s constitution. The Oklahoma option allowed employers to create their own workers’ compensation benefit plans under the Oklahoma Employee Injury Benefit Act (OEIBA) so long as they offered the same benefits as under the state workers’ compensation program. The problem that the Oklahoma Supreme Court had with “Oklahoma option” was that employers were allowed to design plans with procedures that made it more difficult for injured workers to collect benefits than if they were in the state system. In essence, the Oklahoma State Legislature had created separate but unequal workers’ compensation systems for employees injured on the job in that state, which was a violation of the equal-protection clause of the state constitution. But the deeper reason why the Oklahoma option was overturned was that it denied due process to workers who were covered under the OEIBA.

Florida – In Castellanos v. Next Door Company, the Florida Supreme Court struck down attorney fee limits in workers’ compensation cases on due process grounds under the U.S. and Florida constitutions. The Florida court found that fee caps deterred employees from bringing claims because they would be unable to find attorneys. The court also found that fee caps encouraged employers to wrongfully deny claims because workers would be unable to find lawyers to challenge denied claims. Though Castellanos wasn’t an equal protection case like Vasquez, the Florida court pointed out that employers faced no limits on how much they paid their attorneys. Fee caps for employees only created a situation where employees and employers had unequal protections under Florida’s workers’ compensation law.

Vasquez and Castellanos challenged and overturned state laws. But there are other ways for employees to challenge unfair denials of workers’ compensation benefits besides overturning state laws. In the Brown v. Cassens Transportation cases, a group of injured workers in Michigan used a civil RICO statute (anti-racketeering law) to challenge how their employer, the employer’s claims administrator, and a defense medical examiner worked together to undermine their workers’ compensation claims. In Brown, the U.S. 6th Circuit Court of Appeals recognized that since employees gave up their right to a tort suit under Michigan law to receive certain workers’ compensation benefits, injured workers had a constitutionally protected property interest in both the receipt of workers’ compensation benefits and their claims for workers’ compensation benefits and that employer had conspired unlawfully to deny those benefits.

The court in Brown also recognized that workers’ compensation was the exclusive remedy for workplace injuries in Michigan, which is another reason why workers’ compensation benefits were constitutionally protected. The state supreme courts in Florida and Oklahoma also cited the exclusive remedy provisions of their state workers’ compensation acts to support their findings that state laws violated due process and equal protection clauses of the state and federal constitution.

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

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