Tag Archives: Florida

Recalling the Forgotten Provision of the ‘Grand Bargain’

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grand-bargainThe Oklahoma and Florida supreme courts both overturned anti-worker changes to their state workers’ compensation laws based in whole or in part on their state constitutions. Workers’ compensation laws, for the most part, are state laws. This post seeks to explain why workers’ compensation laws are state laws and what that could mean for workers’ compensation laws in the future.

The vast majority of workers’ compensation attorneys and industry observers know the term “Grand Bargain.” In the “Grand Bargain,” employees gave up the right to sue their employers in tort for work injuries in exchange for defined benefits regardless of fault.

Workers’ compensation laws emerged roughly a century ago. However, Congress did not have the power to enact the “Grand Bargain” because of how the U.S. Supreme Court interpreted the Commerce Clause. In 1895, the court held in United States v. E.C. Knight that manufacturing was not commerce. In 1918, the court overturned a law prohibiting child labor on similar grounds and additionally held that the effects of child labor did not have enough of an impact on interstate commerce to justify regulation.

The Supreme Court did uphold the constitutionality of workers’ compensation laws in the case of New York Central Railroad v. White. However, the court upheld workers’ compensation laws based on a state’s so-called “police powers” under the 10th Amendment.

During the New Deal era in the 1930s, the Supreme Court’s interpretation of the interstate commerce clause changed so that workers’ compensation laws could have been enacted by the federal government. But by then, most states had workers’ compensation laws, so a general federal workers’ compensation law was unnecessary.

‘Federalization’ in the Post-New Deal Era

In the 1970s, Congress passed laws regarding occupational safety (Occupational Safety and Health Act) and employee benefits (Employee Retirement Income Security Act) under its authority granted by the interstate commerce clause. But neither OSHA nor ERISA were intended to interfere with state workers’ compensation laws.

The 1970s also saw an ultimately failed effort to impose federal minimum standards on state workers’ compensation. It was in this era that the term “federalization” and the concerns about the impact of federal laws on state workers’ compensation systems emerged.

Federalization re-emerged as an issue in the 2000s when concerns arose that the costs of workers’ compensation injuries were being shifted onto Medicare, and the federal government tried to fashion remedies to shift the cost back onto the workers’ compensation system. The effect of the Affordable Care Act on workers’ compensation was another federal issue that was hotly debated in workers’ compensation circles.

Finally in President Obama’s second term, OSHA issued many rules about medical care and drug testing  that could have affected workers’ compensation laws. Democratic presidential candidate Bernie Sanders and other elected leaders also wrote a letter to the Secretary of Labor pointing out the failure of state-based workers’ compensation systems.

Conventional wisdom is that the election of Donald Trump paired with a Republican Congress will end the Obama era efforts at federalization of the workers’ compensation system. There is probably a fair amount of truth to this idea, but the Trump era may not spell the end of federalization of workers’ compensation.

In the 2010s “sharing economy,” companies such as Uber and Lyft emerged. The business model of these companies is premised on workers being independent contractors. However, this has created litigation and uncertainty for these companies. In 2015, the Democratic-aligned Brookings Institute hosted a discussion about the “reforming” labor laws for companies like Uber. Though workers’ compensation laws are traditionally state-based laws, there is no constitutional prohibition on designing workers’ compensation systems at a federal level. Unfortunately, it seems as some Democrats could find common ground with Donald Trump and House Speaker Ryan to amend ERISA and the Fair Labor Standards Act to exempt Uber drivers and other sharing economy workers from laws such as workers’ compensation.

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

This entry was posted in Legislation, OSHA, United States Supreme Court, Workers' Comp Basics, Workers' Compensation, Workers' Compensation Reform and tagged , , , , , .

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

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What Does this Improper Medical Treatment Sanction from OSHA Mean?

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BoheadFor the first time ever, the Occupational Safety and Health Administration recently sanctioned a Pilgrim’s Pride chicken processing plant for providing improper medical treatment for employees suffering from overuse injuries. While the hazards of meatpacking work to employees is common knowledge and the packing industry is frequently sanctioned for unsafe work practices, the sanction against Pilgrim’s Pride for failing to provide medical care to their workers in Florida indicates OSHA is opening a new front in the battle for a safe workplace.

While OSHA’s sanctioning Pilgrim’s Pride for providing inadequate medical care to their injured workers is novel, their action is consistent with law that states access to prompt and appropriate medical care is crucial to pursuing a workers’ compensation claim. OSHA sanctioned Pilgrim’s Pride for failure to make timely and proper referrals to specialists for orthopedic injuries when employees sought treatment at company first-aid or nursing stations. According to OSHA, delays in treatment can lead to permanent injuries.

The fact that OSHA deems inadequate medical care to be a violation of its regulations could also mean that employees have a statutorily protected right to oppose inadequate medical care. In Nebraska, this would mean that employees could possibly sue their employers under the Nebraska Fair Employment Practices Act. Celeste Monforton, a professor of public health at George Washington University, noted in her post that employers use company health clinics not only to delay treatment but to discourage employees from seeking medical care. Some employers go so far as to discipline employees who do not get permission from their employer to seek outside medical treatment. A recent case in an Illinois federal court stated such policies were illegal.

While Nebraska does not have any case law similar to Illinois about such policies, there is a strong argument to make that such policies would be illegal under Nebraska law and under the law of any state that prohibits retaliation against employees for filing workers’ compensation claims. Policies that require notification and permission to seek medical treatment from employers could also run afoul of Nebraska’s laws allowing employees to choose their own doctors. One Nebraska court has hinted that the right to pick a doctor is a legally protected activity.

Monforton also pointed out that Pilgrim’s Pride could be committing medical malpractice by failing to provide proper care and having nurses treat injured employees without proper medical supervision.

However, packinghouses have some reason to believe that they are immune from medical malpractice suits filed by their employees against their employee health nurses. The legal shorthand for this is called the exclusive remedy. In practice, this means that an employer who provides medical treatment in a negligent manner to an employee who is treating for a work injury can only be sued in workers’ compensation court.

Of course, there are some ways around the exclusive remedy for medical care. The first exception would be that if employee health was outsourced. This would allow an employee to sue that provider directly and could also allow for a civil conspiracy or civil RICO claim.

There may also be other exceptions as well. For example, Nebraska has a Meatpacking Industry Workers Bill of Rights that states that workers employed at covered meatpacking houses have a right to a safe workplace and the right to seek benefits, including workers’ compensation. If an employer does not provide adequate medical care or provides negligent medical care, that could certainly violate the public policy behind the Meatpacking Industry Workers Bill of Rights and warrant a tort case against the packinghouses under the public policy of the state of Nebraska.

Cutting Corners in Construction Costs Lives

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Today’s blog post was shared by the U.S. Labor Department and comes from blog.dol.gov

This is quite the article that looks at the journey of keeping one Florida construction company accountable for workers’ safety. The original incident sadly resulted in one worker’s death and 20 workers’ injuries. The company, Southern Pan, when faced with a $125,000 fine, went through the appeals process to try to avoid paying the full fine. The company’s lawyers were successful, so the Labor Department’s lawyers appealed, and after eight years of the process, this happened: “… an administrative law judge affirmed OSHA’s citations and ordered the company to pay the full penalty of $125,000.”

Although this situation happened in Florida, deaths because construction businesses took shortcuts in safety are all too common. Here’s a link to a blog post from 2015 that was a follow up to an OSHA investigation in Nebraska where one worker died and another was seriously injured when their employer didn’t provide any fall protection and the workers fell 16 feet off a roof.

“According to OSHA rules, employers have the responsibility to provide a safe workplace.”

This thought was highlighted in a previous blog post from a guest author Catherine Stanton, who works at a New York City law firm. In her blog post, she wrote about the need for safety enforcement in construction and other industries.

As I wrote in a recent blog post, violating safety codes are unlawful acts.

“As a representative of injured workers, I have seen hundreds, if not thousands, of work injuries or deaths caused by gross disregard of safety codes and regulations by employers.”

If a business follows OSHA regulations – many of these construction deaths, whether in trenches, as a result of falls, or when a company completely disregards the safety of its workers like in Florida – should be preventable.

It would take a much longer discussion to debate how to make these businesses understand even part of the loss that the loved ones of the workers who died feel, and you can read a few thoughts on this topic at this recent blog post. Because everyone should be able to return home to their loved ones after an honest day’s work.

an image of the collapsed parking garage

an image of the collapsed parking garage

In the construction industry, precision matters – corners need to be square, lines have to be level and plans must be followed. Following the rules keeps buildings and people safe. But when construction companies cut corners, workers often pay the price.

That is exactly what happened in Jacksonville, Florida, in December 2007. A construction company called Southern Pan thought eliminating basic safety procedures would save time and money. The result? A six-story parking garage came crashing down, killing one worker and injuring 20 others. The worker who was killed, Willie Edwards, was only there that day because he decided to pick up an extra shift to buy Christmas presents for his children.

This horrific tragedy could have been easily avoided.

The Occupational Safety and Health Administration enforces construction standards designed to keep workers safe from building collapses like this. To keep a building from collapsing during construction, a process called “shoring” is used, which involves wood or steel beams to help support the weight of concrete and other construction loads.

In violation of OSHA’s construction standards, Southern Pan chose to remove most of the shores from the first two floors of the parking garage, ignoring blueprints that required all shoring to remain from top to bottom until the building was completed. The company then knowingly permitted workers, including Edwards, to work in the…[Click here to see the rest of this post]

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

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

Truck Driver or Traveling for Work, Fun? Watch for Trains at Crossings

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Crashes between trains and semi trucks, pickups, buses or cars rarely end well for the vehicle that’s not the train. It seems to me that there have been a disturbing number of these crashes that have made news nationwide within the past couple of months or so. Nebraska is not immune from this trend, sadly, as here are three examples of varying details that just happened over the course of a recent month.

Just recently, “James Hubbard of Dakota City was driving east across the tracks when his rig was hit by a northbound train,” according to a news article on Journalstar.com, Lincoln, Neb.’s, local newspaper. This television coverage gives more details. Sympathy and thoughts go out to Mr. Hubbard’s loved ones.

Another story in the past month came from within the state around west-central Nebraska, near North Platte. A semitrailer loaded with 68 cattle was hit by a Union Pacific passenger train, and no humans were hurt, although a number of cattle died, were hurt, or escaped the semi’s trailer.

Although it’s reassuring that no one was hurt in the next recent story, it’s also important to let someone know if your vehicle gets high-centered on railroad tracks. This situation, also near North Platte, elaborates on that scenario.

In addition, though not in Nebraska, here are links to three other recent accidents between trains and trucks: one in California, one in Indiana, and one in Florida. According to the news reports, no one was hurt, though all situations were definitely dangerous.

Because attorneys and staff members of Rehm, Bennett & Moore work with injured truckers through the website truckerlawyers.com and various related social-media outlets, I am convinced through my interactions with truck drivers that the vast majority are extremely safety-conscious and careful. But I urge all, regardless of what kind of vehicle you drive, to have a renewed diligence at train crossings.

In fact, my family lives within a mile of a set of very busy train tracks, and on any given day, I usually cross tracks around Lincoln, Neb., around 10 times. So although it is sobering that it takes another person’s death as a reminder, I, too, will encourage my friends and family to follow through on these tips that can be found on the Operation Lifesaver website, which is an excellent resource for truckers and all drivers.

  • “Trains and cars don’t mix. Never race a train to the crossing — even if you tie, you lose.
  • The train you see is closer and faster-moving than you think. If you see a train approaching, wait for it to go by before you proceed across the tracks.
  • Be aware that trains cannot stop quickly. Even if the locomotive engineer sees you, a freight train moving at 55 miles per hour can take a mile or more to stop once the emergency brakes are applied. That’s 18 football fields!
  • Never drive around lowered gates — it’s illegal and deadly. If you suspect a signal is malfunctioning, call the 1-800 number posted on or near the crossing signal or your local law enforcement agency.
  • Do not get trapped on the tracks; proceed through a highway-rail grade crossing only if you are sure you can completely clear the crossing without stopping. Remember, the train is three feet wider than the tracks on both sides.
  • If your vehicle ever stalls on a track with a train coming, get out immediately and move quickly away from the tracks in the direction from which the train is coming. If you run in the same direction the train is traveling, when the train hits your car you could be injured by flying debris. Call your local law enforcement agency for assistance.
  • At a multiple track crossing waiting for a train to pass, watch out for a second train on the other tracks, approaching from either direction.
  • When you need to cross train tracks, go to a designated crossing, look both ways, and cross the tracks quickly, without stopping. Remember it isn’t safe to stop closer than 15 feet from a rail.
  • ALWAYS EXPECT A TRAIN! Freight trains do not follow set schedules.”

Being armed with information is important, so here are links to three more Operation Lifesaver sites:

Crossing Collisions & Casualties

Grade Crossing Fatalities by State (Top 15)

Collisions by State (Top 15)

In addition, Operation Lifesaver does outreach specific to truck drivers and company safety programs, so contact them to learn more about taking advantage of those training options.

The reality is that just as all drivers need to avoid distractions and drive defensively, it is imperative that truckers, those traveling for work, and really, all drivers, pay attention to what’s around them, especially when it comes to crossing train tracks.

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

This entry was posted in car, rail road, railroad, railroad crossing, truck driver, trucker and tagged , , , , .