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.
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.
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 biggest advantage this decision has for workers is the fact that a worker may dismiss a case at any time without prejudice under § 48-177 without having to worry about a counterclaim still hanging out there. In other words, this decision could prevent employers from forcing a trial before plaintiff is ready or if plaintiff wants to wait for trial until after the she or he is done treating.
Another benefit of this recent decision might be a little less obvious. Under Thomas v. Washington Gas Light Co., the U.S. Supreme Court held that a worker may be able to have workers’ compensation coverage in multiple states for the same accident/injury. The reason this is important with respect to counterclaims is that the injured worker now has the ability to dismiss the lawsuit to allow for potentially more-favorable benefits in another state, while still maintaining the option to return to Nebraska jurisdiction at a later date if necessary.
As the holiday season approaches, many people will take on second or holiday jobs. Workers taking on such jobs will be taking on a heightened risk of injury. One academic study showed that temporary employees are two to three times more likely to be injured. An Omaha-based construction company found that 65 percent of lost-time injuries took place in the first 90 days of employment (this link is a downloadable presentation). This blog post will describe some causes of injury and then talk about some particular challenges faced by new employees who are injured.
Slips, trips and falls are the most common cause of work injury. This hazard can be particularly acute during the winter in retail and restaurant jobs because customers will track in snow and other moisture. Strain from lifting is also a common injury. Warehouse work is in high demand over the holiday season, and one risk particular to such work is the risk of falling pallets or boxes.
One challenge that new employees face when they get hurt is how to calculate their disability benefits. A worker may not have been employed long enough for an employer and/or insurer to accurately determine how much the employee should be paid in benefits after getting hurt. One approach may to be base this benefit rate on pay of similarly situated co-workers. If you believe you are getting shortchanged on benefits because you were a new employee when you were hurt, you should contact a lawyer.
Workers’ compensation is supposed to pay you benefits regardless of your fault in the injury. But fault can still play a role in work-injury claims. If your injury was the fault of someone other than your employer or a co-worker, then you might be able to pursue a negligence case against that party. Unfortunately, some employers have tried to reintroduce fault into the workers’ compensation system, to the detriment of newer employees. Some employers will fire or discipline employees who have preventable or lost-time accidents during the beginning of their employment. In my view, such policies amount to employers almost admitting that they are retaliating against employees who get hurt at work. If you have been disciplined under such a policy, you should contact an attorney.
An estimated 7 million Americans work at least two jobs. As the holidays approach, many people will take on holiday jobs as well. Getting hurt at a second job or a holiday job can also create problems at your full-time or regular job. This post will help you navigate some of those issues:
What benefits are you entitled to when you are hurt at a second or holiday job?Your benefits are limited by the wages you are receiving at your second job. You might be able to increase this amount with tips or other perks, but you cannot be paid for wage loss from your first job. If you do have permanent disability, that will be paid based off of a 40-hour week even if you worked part time.
Receipt of workers’ compensation benefits assumes that you are an actual employee and not an independent contractor. For most relatively low-wage part-time work, this is a fair assumption. But since I wrote my holiday job post back in 2013, there has been the emergence of ride-hailing companies like Uber and other sharing-economy companies that have blurred the lines between employee and independent contractor. If you get hurt working for one of these companies, you should contact an attorney, as the distinction between an employee and independent contractor is very fact specific.
How does a work injury at a second job affect your benefits at your regular job?
Assuming your other job’s workers’ compensation insurance company picks up your medical benefits, your health insurance from your regular job would not be affected. But in a disputed case, you may have to use health insurance from your regular job to pay for your workers’ compensation injury at your second job. In that case, you should list workers’ compensation from the company where you were hurt as the primary insurance and your private health insurance as your secondary insurance. Also be aware that if you settle your workers’ compensation claim, you may have to pay back your private health insurance. If you go to trial and win an award of medical benefits, your medical providers should refund the private health insurance and reimburse you for out-of-pocket expenses. In a disputed case, you should contact an attorney not only to get benefits but also to health navigate reimbursement.
Short-term and long-term disability
Larger employers will often have short-term and long-term disability policies to help employees make up for lost income. These are a mixed bag. Some won’t let you collect benefits for work injuries, some may allow you to double collect workers’ compensation and disability, while others may require you reduce benefits. These policies often have repayment policies if a workers’ compensation case is settled as well. It is helpful to have a lawyer to help you with this process as well.
How does a work injury at a second job affect your employment at your regular job?
Assuming your injury requires you to miss time from work, you can claim the Family and Medical Leave Act, assuming your employer has 50 employees, you have worked there for a year, and you have worked there for at least 1,250 hours over the last year. Assuming your employer has 15 employees, your employer would be required to make some reasonable accommodations for your injury under the Americans with Disabilities Act. You should reach out to a lawyer if either employer requires you to return to work without restrictions. The Equal Employment Opportunity Commission has stated in final regulations implementing the Americans with Disabilities Amendments Act of 2008 that policies that force employee to return to work without restrictions are unlawful. Ironically, if you are hurt at your second job, that employer is probably more likely to return you to work at light duty so that they can avoid or reduce what you are owed in temporary benefits. The new ADA regulations were intended in part to end how work-caused and non-work-caused disabilities are treated.
Ideally, if you are hurt on the job, workers’ compensation should pay your medical bills and for any lost time because of that injury. If you are hurt bad enough, workers’ compensation should also pay your permanent disability, for future medical care and even for re-training.
In reality, sometimes this doesn’t happen. This post will attempt to explain the reasons why a workers’ compensation claim will be denied or delayed and what injured employees need to do preserve their rights.
Lack of information: In order for a claims administrator or insurance company to pay a claim, they need to determine if it is covered by workers’ compensation. At a minimum, this means that they need some medical records documenting the injury. This can take time. If a doctor has given work restrictions, this means that the claims adjuster needs to contact the employer to find out if those restrictions can be accommodated. Even assuming everyone is being honest and diligent, this process may take a few weeks. The general standard is to give an insurer three to four weeks to investigate a claim. I would advise that injured employees be civil with employers and insurance adjusters. This can be difficult if you are like many Americans who live paycheck to paycheck, but a loss of temper can compromise your case. It’s difficult to be patient, but the fair employers and/or insurers will make up lost time pay and will pay you a reasonable amount of benefits without dispute and without the involvement of a lawyer.
You aggravated an old injury or chronic condition: To be clear, if you make an old injury or chronic condition worse, that is covered by workers’ compensation in Nebraska. However, this may not be understood by a claims person in a state where there is a different standard of causation. This fact is also not widely understood by most employees or managers, which can lead employers to deny coverage and discourage employees from reporting such injuries.
Your injury came on from overuse or repetitive use rather than from a one-time incident: Arm, hand and even back injuries are very common from repetitive activity. These symptoms usually come on over time, and employees can’t pinpoint an exact injury date to employers or doctors. Under Nebraska law, such injuries are covered by workers’ compensation. But again an unscrupulous insurer and/or employer can use these facts to argue to you that your injury is not covered by workers’ compensation.
You delayed seeking medical treatment: Delaying going to the doctor canhurt your workers’ compensation case, because it raises the suspicion that you hurt yourself outside of work. The delay doesn’t even need to be all that long. It’s a red flag if you claim you were hurt on a Friday then seek treatment on a Monday. There are all sorts of legitimate reasons for some delay, such as the inability to make an appointment, wrongfully thinking you need to ask permission to see a doctor from your employer, seeking treatment with company nurses first, or even thinking an injury will improve on its own. A lawyer can make those arguments with some success, and you should contact one if this is an issue in your case. But the longer you wait to see a doctor, the more likely it is your claim will be denied.
You didn’t tell your supervisor you were hurt, or you didn’t fill out an accident report: If you are hurt at work, your employer has a duty to report to the state of Nebraska and the Occupational Safety and Health Administration (OSHA) that you were hurt. You also have a duty to inform your employer as soon as practicable. Cover yourself, and report the injury. Even if your employer doesn’t have a form or a formal human resources department, send a text or e-mail to your boss telling that person what happened and what kind of injuries you have.
You initially denied you had a work injury: Some employers will tell you that they will take care of the injury themselves and not turn it in to workers’ compensation. In some cases, employees are afraid to turn in injuries. In other cases, an employee has been led to believe that an injury isn’t covered because of the factors listed in points 2-5, so that worker turns the claim over to private insurance. The problem with this outcome is that for a serious injury you can get stuck with paying a lot of money out of pocket, which can be almost impossible to pay if you aren’t working and not receiving workers’ compensation benefits. Even worse, some health insurers will reverse payment if they get an indication your bills should have been covered by workers’ compensation. Some companies have private disability policies that might allow you to collect some benefits, but those policies will also deny benefits if they have some indication that there was a workers’ compensation claim.If you are in this situation, you need a lawyer for your workers’ compensation claim. You also need a lawyer who knows creative ways to turn the tables on employers and insurers who completely deny benefits to their employees. Some of my most professionally satisfying cases have come from turning the tables on employers who, for lack of a better word, jack around employees who make some mistakes in how they handled their workers’ compensation claims.
Even if you have done several things to hurt your workers’ compensation claim, a good lawyer can take actions to get justice on your claim.
Your employer didn’t fill out an accident report or filled it out wrong: Not all denials or delays are due to mistakes made by employees. Employers drop the ball as well. That’s why you want to cover yourself with your own written report as well as see a doctor as soon as you can and be sure to tell that doctor how you were hurt.
You were treated by a physician assistant or nurse practitioner: Some insurers and/or employers believe that physician assistants and nurse practitioners cannot testify in a workers’ compensation case in Nebraska. I strongly disagree, but the issue has never been definitively decided by an appellate court. An aggressive employer and/or insurer will use this as an excuse to not pay benefits. A lawyer can help fix this issue by asking a supervising physician or D.O. to give an opinion in your case.
You went to see your own doctor rather than the employers’ doctor: Unless your employer gives you notice AFTER your work injury, you have the right to be treated by your doctor. You don’t have to see the doctor at the clinic where your employer sends you to be drug tested after an injury.
I despise few phrases more than “workers’ compensation doctor.” Any doctor can treat you for a workers’ compensation injury. A “workers’ compensation doctor” or an “occupational medicine doctor” is just a doctor who is happy to fill out the extra paper work required in a workers’ compensation claim. Usually these doctors work hand in glove with employers and insurers. Sometimes this works out for employees, but many times it doesn’t. Unscrupulous or unknowledgeable insurers and/or employers will deny care to employees who pick their own doctors. Sometimes employers will take action against employees as well. In cases like this, you need a workers’ compensation and employment lawyer.
Your employer blames you for your injury: Unless you were intoxicated when you were injured, the issue of fault is irrelevant in a workers’ compensation claim. If your employer is denying your claim based on you being at fault, you need a lawyer for your workers’ compensation claim and one that can evaluate a potential employment-law claim.
You are being denied benefits because you were fired or quit: Like the issue of fault for your injury, the fact you were fired or quit post-accident should have little impact on your workers’ compensation claim, but you should contact a lawyer who can advise you on workers’ compensation and employment law.