Tag Archives: Disability

Three Clues Your Employer Doesn’t Want You To Return To Work After An Injury

Posted on by

Apologists for Thought leaders in the workers compensation insurance industry like to tout how they want injured employees to “return to work.”  But insurance industry rhetoric about the importance of return to work is belied by at least three common scenarios involving employees with serious work injuries.

  1. Employer requires an employee to resign in order to receive a lump sum settlement for their workers compensation claim: Early on in my career a defense lawyer told me that his client “Didn’t want their employees driving to the plant in an Escalade (this was the mid-2000s) after they settled their workers compensation case.” Putting aside the absurdity of someone who earns wages that would make their kids eligible for free or reduced lunch buying a luxury SUV after they had been off of work for an extended length of time, this practice indicates that some employers really don’t want injured workers to return to work after an injury.A recent discussion over the WILG listserv indicated that resignation as a condition of a workers compensation case settlement was a common practice across the United States. An agreement to resign normally comes as a separate severance agreement. Those settlement agreements may not be binding if an employer doesn’t include the right language in the release which is why an injured worker would want to consult with an employment lawyer or have a lawyer familiar with employment law and workers compensation represent them in their work injury.

    Certain states, like Massachusetts, outlaw the practice of conditioning a settlement on resignation. Even in states where the practice is considered lawful lawyers may consider challenging such practices on the basis of anti-retaliation laws, unfair claims practice laws or causes of action that prevent interference with contractual relationships.

  2. Employer requires employee to return to work with “no restrictions”. 100 percent healed policies are considered to violate the Americans with Disabilities Act by the Equal Employment Opportunity Commission (EEOC) and by some intermediate level federal appellate courts. Regardless of whether the Supreme Court or Congress ultimately decide such policies are illegal, oftentimes a person with an injury that requires surgery and time off from work is going to have some permanent restrictions.Many times requests that an employee return to work without restrictions are sent after an employee exhausts their 12 weeks of FMLA. Oftentimes employers will extend a short amount of unpaid leave in addition to FMLA. When injured employees receive these letters many of them feel like their company is trying to push them out. This feeling can sometimes be correct. That’s why it is helpful to have an attorney who knows how workers compensation and employment laws intersect.
  3. Employer suggests that employee apply for private disability for a work injury: Private short-term (STD) and long-term disability (LTD) policies can be helpful to employees. Some policies even allow employees to collect both LTD and STD with workers compensation benefits.But some employers will push employee onto disability because it is cheaper than paying workers compensation benefits. Even more insidiously if an employee stays off work long enough that they are eligible for long term disability, some long-term disability policies require that employees apply for social security disability or SSDI in order to continue receiving LTD. Many of these policies hold if an employee receives SSDI they need to payback the LTD insurance company for the time that SSDI and LTD benefits overlapped.

    I ran into a policy like this representing a client in a disability discrimination case. Courts have questioned the legality of these policies as well. If you are stuck in a situation where you are applying for long term disability because of a work injury and being forced to apply for SSDI, you should consult with a lawyer who is familiar with workers compensation and SSDI.

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 employment law and tagged , , , , , , , , , , .

Why an Obscure Securities Law Case Could Affect SSDI

Posted on by

Securities and Exchange CommissionSocial Security Disability Insurance (SSDI) cases are largely decided by administrative law judges (ALJs). A decision questioning the role of ALJs in another area of the law could cause some major complications for SSDI applicants and SSDI beneficiaries.

The 10th U.S. Circuit Court of Appeals recently set aside a conviction for securities fraud by the Securities and Exchange Commission (SEC) because the ALJ who decided the case should have been appointed under the Appointments Clause rather than hired by the SEC. The 10th Circuit’s decision directly conflicts with a recent decision made by the District of Columbia  Circuit Court of Appeals, which means the U.S. Supreme Court could take up the issue.

This matters to SSDI applicants, their attorneys and even present SSDI beneficiaries because the vast majority of administrative law judges, roughly 1,200 of 1,400, have been hired by the Social Security Administration to hear Social Security Disability appeals. Similar to ALJs from the SEC, ALJs who hear SSDI appeals are hired on merit and are federal employees.

If the U.S. Supreme Court followed the recent 10th Circuit decision and applied it to ALJs who heard Social Security Disability appeals, at least 1,200 ALJs would have to be appointed by the president and confirmed by the Senate. This could lead to further delays and uncertainty related to SSDI appeals. If the 10th Circuit decision were applied to SSDI judges, it is uncertain as to whether awards of disability would still be valid if they were made by unconstitutionally chosen ALJs. In 2014, in National Labor Relations Board v. Noel Canning, the Supreme Court held that the NLRB’s decision made by commissioners who were appointed by constitutionally invalid recess appointments was invalid.

The Social Security Administration has recently moved to abolish the treating physician rule in an effort to decrease claim payments. Uncertainty over whether the awards of SSDI benefits are constitutional would add additional hurdles to those needing SSDI benefits. If you are applying for Social Security Disability or thinking about it, contact an experienced attorney. Also, contact your lawmakers to express your concerns about the SSDI system to them.

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 Courts, employment law, social security disability and tagged , , , , , .

What Could You Possibly Know About Your Own Disability?

Posted on by

disability self reportingIn 1991, the Social Security Administration drafted a rule that explained that controlling weight was given to medical opinions from treating sources about the nature and severity of claimants’ impairments if they are well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with other substantial evidence in the record. This rule is commonly known as the “treating physician rule.”

The SSA has recently proposed a number of changes to this rule based upon a 2013 study (downloadable PDF). Among the recommendations were to no longer apply controlling weight to doctor opinions addressing the following issues:

  • Statements that an individual is or is not disabled, blind, able to work, or able to perform regular or continuing work;
  • Statements about whether or not an individual’s impairment(s) meets the duration requirement for disability;
  • Statements about whether or not an individual’s impairment(s) meets or equals any listing in the Listing of Impairments;
  • Statements about whether or not an individual’s impairment(s) functionally equals the Listings.

The SSA will also not use a diagnosis, medical opinion, or an individual’s statement of symptoms to establish the existence of impairment. A physical or mental impairment would now need to be established by “objective medical evidence.”

It’s easy to understand how discounting a treating source could adversely affect applicants for disability. These physicians have the most interaction with their patients in terms of frequency and duration of involvement. When you contrast a treating physician’s opinion with a doctor chosen by the SSA who most often never even meets or speaks with the claimant, you can see the problem. Putting these two entities on the same footing legally seems misguided at best and purposefully devious at worst.

However, when you add in that the SSA will not use an individual’s statement of symptoms as a basis for finding disability, particularly in the mental-health field, you make proving disability a much more difficult proposition than it already is. Individuals who are applying for disability typically face difficulty seeing doctors on a regular basis due to obvious financial considerations.  They often cannot afford the “objective” tests to fully explore the extent of their diagnoses. Moreover, there are no objective tests to diagnose depression, schizophrenia, anxiety, etc. The very nature of these claims requires a thorough examination of the claimant’s expression of disability to diagnose, evaluate and treat. The SSA cannot possibly ignore the claimant’s accounts of their disability and do an adequate job of evaluating these claims, especially the ones based upon mental illness.

The SSA needs to jettison these proposed rule changes, and stick with the controlling weight standard that has been in place for 25 years. Furthermore, they need to allow the judges to evaluate claimant testimony without rigid rules that discount their personal evidence.

To comment on the SSA proposal, follow this link: Regulations.gov – Docket Folder Summary and press the “Comment Now!” button. Comments are due Nov. 8 (next Tuesday, aka Election Day).

Please contact an experienced Social Security Disability lawyer with specific questions about the details of your case.

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 Government, social security disability and tagged , , , .

What Happens If I Get Hurt at My Second Job?

Posted on by

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:

  1. 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.

  2. How does a work injury at a second job affect your benefits at your regular job?

     

    Health insurance

    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.

  3. 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.

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 Workplace Injury, Workplace Safety and tagged , , , , .

9-11: 15 Years Remembered

Posted on by

What have we learned, and what is the progress we have made toward helping those who help others?

As we remember and celebrate that fateful day, we should continue to celebrate and protect those who risk their lives to help others but who continue to live with the mental and emotional effects when faced with such tragic events encountered in responding to the call to serve.

In Nebraska, we have recognized that with tragic events come the effects to some who just can’t mentally and emotionally get past those events. We have garnered some protections for those first responders whose job it is to serve when emergency matters require it.

First responders have a specific definition as set forth in Nebraska Revised Statute 48-101.01, but essentially if a person serves as an officer, fireman or medical emergency personnel who is called to an emergency response situation, then that person has some workers’ compensation protections.

Personal injury now “includes mental injuries and mental illness unaccompanied by physical injury for an employee who is a first responder” if that person suffers from PTSD, depression, anxiety, mood disorder, panic attacks, reactionary diversion, neurotic disorder, etc.

One must establish “that the employee’s employment conditions causing the mental injury or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment” in which they serve.  What is usual is constantly being debated and disputed, but an event causing significant bodily injury or death is not usual in the eyes of the courts.

What is not covered or considered compensable are “mental injuries and mental illness arising out of and in the course of employment unaccompanied by physical injury … if they result from any event or series of events which are incidental to normal employer and employee relations, including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, terminations” or going through the legal process in unrelated matters.

Sometimes employers will retaliate against employees who claim work injuries. Though demotions, write-ups and post-injury terminations aren’t compensable through workers’ compensation, there could be a retaliation or disability discrimination claim. First responders who believe they might be being retaliated against should also reach out to the NAPE/AFSCME, IAFF or FOP representative immediately to help preserve their employment.

We have come a long way in the 15 years since 9-11 in providing protections and workers’ compensation coverage to first responders who make it their job to serve and protect. But what about those who were working and saw and experienced this tragedy who are not first responders? They continue to not be covered for their mental and emotional effects. On this anniversary date, as we remember those who served, we need to continue to fight for everyone who encounters tragic events in the course and scope of their employment and suffers mental illness or conditions, but do not suffer a physical injury. They need the protections workers’ compensation coverage can provide, just like first responders.

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 Government, Legislation and tagged , , , , , , , , , , , .

Trouble Flexing Your Foot Up? You May Have Foot Drop.

Posted on by

Today’s blog post was written by Anthony L. Lucas from The Jernigan Law Firm in North Carolina. I think that consumers and those who have loved ones with this condition will find this information useful. Just like in a previous blog post that Mr. Lucas wrote, it is helpful to have more details about a medical concern, so a person can have the knowledge to ask questions for greater understanding of a person’s individual situation.

Though each case’s details are different, in general, if foot drop is a result of you or your loved one’s work-related injury, it is more than likely covered by a state’s workers’ compensation laws. There are some exceptions in Nebraska, so please contact a lawyer who is familiar with your state’s workers’ compensation system for more information and with your specific details.

Foot drop describes the inability of a person to lift his or her foot at the ankle due to weakness or paralysis of the muscles that lift the foot. Foot drop can be caused by several things including: an injury to the spinal cord, an injury to the nerve that controls the muscles involved in lifting the foot during hip or knee replacement surgery or during intramuscular injections, ALS, multiple sclerosis, Parkinson’s disease, or muscular dystrophy.

Symptoms of foot drop include dragging your foot on the floor when you walk, walking like you are climbing stairs to prevent your foot from dragging, and numbness on the top of your foot and toes. Treatment options depend on the cause and severity of a person’s drop foot and include orthotics such as braces or foot splints, physical therapy, or surgery including decompression, nerve sutures, nerve grafting, nerve transfer, or tendon transfer.

Depending on the cause of a person’s foot drop, it may not be a lifelong disability. If the underlying cause is trauma or nerve damage it is possible for a person’s foot drop to improve or go away completely; however, if the underlying cause is a progressive neurological disorder, foot drop will likely continue as a lifelong disability.

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 , , , , , , .

Exoskeletons and the Workplace

Posted on by

Due to Japan’s rapidly aging demographics, they are using exoskeletons to make older workers more productive in heavy-labor jobs.

“’We expect that exoskeletons, or power-assist suits, will be widely used in people’s lives in 15 years,’ said Panasonic spokesperson Mio Yamanaka, who is based in Osaka, Japan, as quoted by Tech Review.”

“The suit, which weighs just over 13 pounds and attaches to the back, thighs, and feet, allows its wearer to carry an additional 33 pounds,” according to the Business Insider article. Industries that have tested the suit in Japan include warehouse handlers and forestry workers. Another suit in testing that’s larger “could help workers carry up to 220 pounds.”

I see some upsides and downsides to this trend:

Positives:

  1. This preserves manual-labor jobs. The human brain is still more sophisticated than a computer when it comes to having the skills to perform many tasks. Robotically enhanced humans might preserve human labor.
  2. It’s potentially easier to accommodate injured and disabled employees. There might be fewer workers’ compensation payments, but employers may find it harder to fire injured workers.  Not having an exoskeleton available for injured or disabled employees could be considered discrimination.
  3. Less discrimination against older workers would occur when physical limitations are decreased.

Negatives:

  1. Using an exoskeleton opens the potential of abuse by employers. The machines may push production workers to perform their duties even faster. Employees may still have injuries or maybe even develop new work-related injuries from using exoskeletons.
  2. Are exoskeletons really safe? Who is responsible if they cause injury?

In summary, if you or a loved one have questions about current workplace trends as they apply to injured workers, please contact an experienced workers’ compensation lawyer.

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 Workplace Injury, Workplace Safety and tagged , , , , .