Tag Archives: equal protection

Why are mental-mental benefits generally limited to first responders?

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Convenience store clerks are often exposed to violence. But in order for them to be compensated for work -related mental trauma, they generally need to have a physical injury.

The question of why coverage of so-called “mental-mental” injuries, or work injuries that do not involve a physical injury, is generally limited to first responders is a question that is increasingly vexing attorneys for injured workers and commentators on workers compensation — and workers.

The answer boils down to politics.

From a logical and moral point of view there is no reason why a convenience store clerk and a police officer shouldn’t be able to collect workers’ compensation for purely mental injuries from exposure to violent crime. 

Legally that moral and logical sentiment is often expressed as an argument that such distinctions violate equal protection under state and federal constitutions. Advocates for injured workers have had some success in striking down so-called workers compensation reforms on equal protection grounds.

But while equal protection arguments can be useful in restoring rights to workers compensation, they are less helpful in creating new rights such as compensation for mental injuries. When addressing whether a law is constitutional, appellate courts usually decide first on what level of scrutiny to apply. The less stringent the scrutiny, the more likely the court will find the law to be constitutional.

Health and safety laws like workers compensation are generally afforded rational basis scrutiny by appellate courts. That means courts will generally uphold the constitutionality of those laws. That deferential level of scrutiny emerged out of the New Deal era as a way to uphold the constitutionality of laws relating to social welfare. But in the modern era rational basis scrutiny is often used to argue that the protections of laws like workers compensation shouldn’t be expanded by courts in a way not intended by a legislature.

In Nebraska it was the legislature that created compensation for mental-mental injuries for first responders and expanded that protection to prison guards and Department of Health and Human Services employees in contact with high risk indviduals. So ultimately providing protection for purely mental injuries to all workers — not just first responders — will be a political issue.

 

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 Nebraska, PTSD, Workers Compensation and tagged , , , , , , .

More Takeaways from the Demise of the Oklahoma Option in Workers’ Compensation

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oklahoma-ruling-vasquez-v-dillardsThe Oklahoma Supreme Court’s decision to strike down the so-called “Oklahoma Option” in Vasquez v. Dillard’s was one of the biggest events in the world of workers’ compensation. Vasquez represents a growing trend by advocates for injured workers recognizing that workers’ compensation is a matter of constitutional law. But the Vasquez decision is important for other reasons.

Opt-Out is Still Viable

Though some commentators declared the defeat of the Oklahoma option was the death of opt-out, many justices on the Oklahoma Supreme Court who overturned the Oklahoma option would disagree.

A concurring opinion contrasted the Oklahoma opt-out system with the Texas opt-out system. In Texas, employers are not required to have or “subscribe” to workers’ compensation. But if Texas employers do not subscribe to workers’ compensation, injured Texas employees can sue their employer in tort with all affirmative defenses stripped away. This encourages employers to carry workers’ compensation insurance. Nebraska has a similar law for agricultural employers who are exempt from having to carry workers’ compensation.

Oklahoma’s “opt-out” created separate workers’ compensation systems: the state system under the Administrative Workers’ Compensation Act (AWCA) or the private systems under the Oklahoma Employee Injury Benefit Act (OEIBA), where employees were eligible for the same benefits but where employers could draft their own rules for eligibility. Regardless of whether an employee was covered under the AWCA or the OEIBA, employers still had to be covered under one system or another, and employees could not sue their employer in tort for work injuries. What doomed the Oklahoma option was the fact that unfair procedures under the OEIBA created separate but unequal workers’ compensation systems.

The contrast between the now defunct Oklahoma option and the still-viable Texas opt-out system was reinforced when the Vasquez court rejected Dillard’s argument that Vasquez’s claim was pre-empted by the federal Employee Retirement Income Security Act (ERISA) law. Under the Oklahoma option, plans under the OEIBA were to be governed by the ERISA law. However, since OEIBA served as workers’ compensation and ERISA plans that serve as workers’ compensation plans do not pre-empt state workers’ compensation laws, the OEIBA was not pre-empted by federal law. In contrast, state law claims against employers on disability insurance plans who are “nonsubscribers” in Texas are pre-empted by ERISA.

Few, If Any States, Are Going to Implement the Oklahoma Option

The Oklahoma option was struck down on equal-protection grounds based on the Oklahoma state constitution. Most other states have similar provisions in their state constitutions. In Nebraska, that provision is found at Article III, Section 18 of our state constitution. This provision concerns itself with disparate treatment in much the same manner as does the language of the 14th Amendment of the U.S. Constitution, which prohibits a state from making or enforcing any law that denies any person within its jurisdiction “the equal protection of the laws.” Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989). Even in a state without an equal protection clause in the state constitution, separate but unequal workers’ compensation systems could be likely be struck down on equal-protection grounds under the U.S. Constitution.

Injured Workers Are a Protected Class

Injured workers are sometimes subject to retaliation for bringing workers’ compensation claims. In 2013, the U.S. Supreme Court distinguished “discrimination” or “protected status” from “retaliation” or “protected activity” cases under Title VII and held that there was a higher burden of proof for employees bringing a retaliation case than for an employee bringing a discrimination case. However, if injured workers are thought of as a protected class, then discrimination in the form of termination should be thought of as a form of discrimination, and those claims should be subject to a more relaxed burden of proof than required in the Nassar 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.

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Firm’s Attorneys Participate in Law Day at Lincoln North Star

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Attorneys Jonathan V. Rehm and Brody J. Ockander

In 1958, President Dwight Eisenhower proclaimed May 1 as Law Day to celebrate the importance of law in our society. Every year, to recognize Law Day in Lincoln, the Lincoln Bar Association organizes lawyers and judges to make presentations to local high schools.

This year, Jon Rehm and I presented to Lincoln North Star High School on the topic of “Equality for All,” more specifically, equal protection under the 14th Amendment. The topic was chosen based on the 50th anniversary of Dr. Martin Luther King’s “I Have a Dream” speech.

In order to understand the importance of equal protection under the 14th Amendment, we discussed the cases of Plessy v. Ferguson (1896) and Brown v. Board of Education (1954) and had the students act out parts from the oral argument of Briggs v. Elliot (1954), a case that was consolidated with the Brown case.

This gave the students a hands-on approach to understanding the arguments made by the parties and the role of the Supreme Court in interpreting the 14th Amendment.

In all, we had a wonderful time discussing these topics and other current topics within the courts to high school students who may someday become the next generation’s Thurgood Marshall.

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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