Tag Archives: FMLA

Did the Supreme Court undercut ADA protections for employees of religious hospitals?

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Last week the Supreme Court decided that two teachers working at Catholic schools could not sue their employer for discrimination because of the “ministerial exception” to federal workplace discrimination laws.

The Supreme Court clarified (or broadened) what kind of religious school employees are excluded from anti-discrimination laws. The Supreme Court held that the First Amendment’s Religion clause precluded courts from second guessing the reasons for firing ministerial employees. The court held there was no formula for who was a ministerial employee. The court stated that depended on the extent an employee conveyed the message of the church and carried its mission.

Arguably, the Morrissey-Berru decision and the Hosanna-Tabor decision which it relied on only apply to religious school teachers. Before these decisions, lower courts held that most religious school teachers were covered under federal civil rights laws. (See the dissent from Justice Sotomayor starting at page 37 of the opinion.)

Who else will be excluded from civil rights laws?

So, if churches have broader latitude to discriminate against employees, how broad is that latitude. Would this apply to nurses and nurses aides at hospitals affiliated with a church? Nurses and nurse’s aides are often injured at work. Because of this fact, they often need to invoke the Americans with Disabilities Act (ADA) and Family Medical Leave Act. (FMLA) Would a religious hospital argue the ministerial exception to argue the ADA and FMLA did not apply to a nurse or nurse’s aide hurt at work?

So far, at least in Nebraska and the Eighth Circuit I haven’t seen any cases where that happened. But Catholic Health Initiatives (CHI), a major health care employer locally, has some expressly religious statements in its mission statement. Would that language be enough to argue ministerial exception? Maybe not, but religious freedom advocates have advised employers about steps they can take to invoke the ministerial exception defense.

Another commonality between Morrisey-Berru and Hosanna-Tabor

I believe that major church-affiliated health care employers will continue to follow the ADA and FMLA. Major employers and their HR departments tend to be risk-averse. But in litigated cases, I believe outside counsel would push ministerial exception arguments.

Both the Hosanna-Tabor and Morrisey-Berru cases involved ADA claims. This fact fails to surprise me and I doubt that it’s entirely coincidental. From a practical perspective, ADA claims tend to be better cases for employees than other civil rights cases. I believe this is so because employers are more likely to botch ADA/FMLA compliance than other forms anti-discrimination laws. Arguing the ministerial exception is one way to defeat an otherwise valid ADA case.

A return to the pre-ADAAA bad old days?

But when I started practicing in 2005, ADA cases were harder to win. What changed was the ADA Amendments Act of 2008 which broadened the definition of disability. That change made ADA cases easier to prove.

Those changes to the ADA also made it easier for workers to heal from work injuries and return to work after injury. Pre-2008, if an injured worker was not ready to return to work after their 12 weeks of FMLA leave they would likely be fired. This threat often forced injured workers to attempt to return to work before they were ready. In tandem with “100 percent healed” policies, injured workers would also work with their doctors to downplay or eliminate work restrictions. An employee who returned to work with “no restrictions” before ready risked injury and also compromised the value of their workers’ compensation case.

But if courts extend Hosanna-Tabor and Morrisey-Berru to health care workers, the past is prologue for those workers. If courts extend these cases to hold the FMLA does not apply to health care workers, the future may be worse than the pre-ADAAA past.

Common law employment law claims?

Left unaddressed by the Supreme Court is whether religious employers can claim exemption from common law employment law claims. For example, Nebraska law makes it unlawful to retaliate against a worker claiming workers compensation. The Nebraska Workers Compensation Act covers churches and church employees. Arguably it would defeat the purpose of that law to allow churches or religious employers to retaliate against those employees.

On the flip side, Supreme Court cases about employment law tend to persuade state court judges. In her dissent in Morrissey-Berru, Justice Sotomayor criticized the ministerial exception as judge-made law. But the law prohibiting employers from retaliating against employees who claim workers’ compensation is also judge-made. That fact may make judges in Nebraska more willing to create a ministerial exception in common law anti-retaliation claims.

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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Feds prosecuting COVID fraud by employees

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My jaw dropped last Tuesday when I read a blog post by Ohio-based management defense attorney Jon Hyman.

Hyman posted the Department of Justice criminally charging an employee for allegedly defrauding his employer by submitting a forged doctor’s note stating he had COVID-19. Human Resources and management-side defense social media share a near obsession with Family Medical Leave Act (FMLA) fraud by employees.

So why can HR now sic the FBI on employees who forge  off-work notes?

The CARES Act, interstate commerce and taxing power

The answer to this question is the CARES Act. Passed in response to the COVID-19 crisis, the CARES Act amended the FMLA to provide some employees with paid leave related to COVID-19. The CARES Act also used federal funds to expand unemployment benefits related to COVID-19.

Normally state law would govern the prosecution of small-time workplace fraud under crimes like forgery and unemployment fraud. But a federal bailout creates federal criminal jurisdiction. The United States Department of Justice is aggressively prosecuting COVID fraud. Some employer-advocates question the use of the federal power to regulate interstate commerce for the good of employees. But the interstate commerce clause also expands the ability to federalize crime. It seems like employer-advocates are welcoming the expansion of federal authority to prosecute fraud by employees.

Federal taxes partially fund unemployment benefits. This would give the federal government the power to federalize unemployment fraud through the taxing power granted to Congress by the Constitution.

The real COVID fraudsters

The Georgia case is the first known incident of an employee being prosecuted for forging a medical note. COVID-related fraud mirrors workers’ compensation fraud in that most fraud is not committed by employees.  Apparently organized crime is submitting false unemployment claims. Some individuals and businesses are falsely submitting claims under the Paycheck Protection Program. If an employee suspects their company is abusing the Paycheck Protection Program they could bring a claim under the False Claims Act.

But while low level employees are not committing the vast majority of COVID fraud, low-level employees are the easiest to prosecute. Prosecuting low-level employees for COVID fraud serves at least two purposes for employers.

Reopening and unionizing

As the perceived threat of COVID recedes, many businesses are reopening and employees are returning to work. Employers complain that some employees are reluctant to return to work because of enhanced unemployment benefits. However many employees are expressing safety concerns about COVID exposure. Publicizing the prosecution of COVID fraud by employees calls into question the legitimacy of employee safety concerns. Criminalizing COVID fraud by employees also allows employers and their mouthpieces in the media to portray workers worried about COVID as welfare cheats.

The use of state power on behalf of employers against employees serves another purpose. Mike Elk of Payday Report tracked walkouts and strikes related to the COVID 19 pandemic. Management-side pundits are also expressing concern about rising pro-union sentiments by employees.  Prosecuting employees is one way to intimidate employees who want to form unions or engage in collective action in the workplace.

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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Pandemic exposes problems with outsourced leave and disability

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The COVID-19 pandemic is exposing the deep flaws of unemployment insurance, workers compensation and the employment at-will doctrine. The pandemic also shows problems with how family and medical leave is administered.

Outsourced leave administration

Many large employers outsource FMLA leave eligibility decisions. Often times the leave administrator also decides whether an employee receives short-term and long-term disability. Even in normal times,  outsourced leave companies will miscalculate leave eligibility for employees. I believe this happens because the leave and disability companies aren’t communicating with HR departments. I’ve also heard from employees about faulty leave administration software.

Bad communication between leave administrators and HR departments leads to employees losing their jobs. Sure an employee can sue their former employer, but litigation is time consuming and uncertain.

But if even if leave companies and human resources departments are communicating, they may not be acting in good faith. Again, even in normal times human resources departments and leave administrators often hassle workers about insufficient documentation about the need for FMLA leave.

So, how does this pandemic make this bad situation worse.

Outsourcing leave during a pandemic

There are several reasons why leave administration falls short during a pandemic. First, more people will be taking leave either for themselves or take care of a family member. Congress has also expanded eligibility for family and medical leave benefits. As a result, like with unemployment, more people will be making demands for leave. This will slow down the process.

But, this heightened demand for leave could be met with a reduced response by leave administrators. The people employees rely on to process leave claims tend to be working at home.  Working from home has slowed down the processing of insurance and other claims.

Finally, family and medical leave requires medical documentation. Workers often stumble in completing required paperwork. But during a pandemic, doctors may lack the time to fill out paperwork. Despite this difficulty, the Department of Labor disagreed with the Centers for Disease Control and required employees to provide medical documentation of COVID-19 leave.

Why does leave administration stink so bad?

Family and medical leave administration sucks so badly for employees because it’s often tied to private disability insurance. Like workers’ compensation, private disability is a for-profit social insurance program. But unlike workers’ compensation , there is weak judicial accountability for denials of private disability.

Bluntly I believe the disability insurers use leave administration as a way to sell disability policies to employers. While disability policies can be useful for workers, insurers would rather collect premium than pay claims. Many employees would rather shift the cost of work injuries onto disability insurance.

When it comes to long-term disability policies, employers and insurers share goals when it comes to cost-shifting. Many long-term disability policies require covered employees to apply for social security disability insurance (SSDI). Policies often include language that lead the insurers recoup disability benefit payments if employees receive SSDI. This leads disability insurers file SSDI on behalf of employees even if they never decided to apply. I would expect to see this practice increase as unemployment increases to levels not seen since the Great Depression.

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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How COVID-19 complicates workers’ compensation claims

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COVID-19 (coronavirus) is disrupting life for everyone. If you were hurt at work before the pandemic hit, your life has been disrupted doubly. Here are some ways how COVID-19 is complicating workers’ compensation cases for injured workers.

Delays in medical treatment

I’ve heard several reports that physical therapists and orthopedic doctors are limiting appointments and delaying procedures because of the virus. So even if an insurer or claims administrator has accepted your claim and approved treatment, you may have to wait for treatment.

Some of this delay may not be bad for workers if temporary disability benefits are being paid along with medical benefits. In 15 years of practice, I’ve seen employers and insurance companies force employees to return to work sooner and sooner. The delays in medical treatment created by COVID-19 may give some employees more time to heal from their injuries.

FMLA

But on the flip side, delays in medical care will likely force some employees to lose job protected under the Family Medical Leave Act. (FMLA) While FMLA protections were expanded under the CARES Act, those expanded protections don’t give any additional job protected leave to employees who were hurt on the job if it wasn’t related to COVID-19.

Undermining doctor choice

In Nebraska, employees have the right to pick their own doctor to treat their work injury. These doctors are often primary care doctors. Of course during a pandemic, it is harder for an injured worker to see a primary care doctor and have a primary care doctor fill out necessary paperwork for a workers’ compensation case.

Unscrupulous employers may use the unavailability of a family doctor to steer an injured worker to an employer-friendly occupational medicine clinic. This tactic pre-dates the coronavirus, but expect the pandemic to provide a new talking point for human resources and workers’ compensation bureaucrats to manipulate medical care in workers’ compensation cases.

The gears of the workers’ compensation bureaucratic complex have not stopped grinding during the pandemic. Genex, who contracts with insurance companies to micromanage medical care for injured workers, wrote a blog post last week heroically portraying one of their nurse case managers overcoming the resistance of a treating doctor and COVID-19 to return an employee back to work. (Assuming they had a job to return to in the first place.)

But if insurance companies and their minions can play the “corona card”, so can injured workers. Injured workers have the right to exclude nurse case managers from examination rooms. I would suggest injured workers’ ask nurse case managers to observe “social distancing” and stay out of cramped examination rooms.

Loss of health insurance in denied claims

Thanks to firms like Genex, many employers prematurely quit paying workers’ compensation benefits. This often forces employees to pay for medical treatment related to work injuries with their health insurance. But this plan could go awry if employees lose health insurance benefits due to a layoff.

Under the law, employers are supposed to continue health coverage under COBRA. Injured workers may also be able to sign up for health insurance under the Affordable Care Act. But COBRA coverage is too expensive for most employees and even ACA coverage can be too costly for many. Employees should see if they are eligible for unemployment under the CARES Act. Employees could help pay for health insurance with the additional $600 per week unemployment benefit on top of regular weekly benefits and extended weekly benefits available under the CARES Act. But even with increased unemployment benefits, injured workers may have to make difficult financial decision about pursuing medical care.

Previous posts about coronavirus/COVID-19

Navigating a workers’ compensation claim amid mass layoffs and economic uncertainty” – March 30, 2020

What workers should know about coronavirus and workers’ compensation” – March 23, 2020

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 workers should know about coronavirus and workers’ compensation

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According to NBC News, at least 20 percent of healthcare workers in Italy have been exposed to coronavirus. Health care workers in Nebraska may be at a similar level of risk. Workers in essential retailing, warehousing and delivery are probably also at heightened risk of catching coronavirus.

So, what do employees need to know to about coronavirus and workers’ compensation?

Reporting possible coronavirus exposures on the job

Coronavirus cases could be difficult workers’ compensation cases for reasons I will explain below. But these difficult cases will be even more difficult in Nebraska if workers fail to notify employers in a timely fashion if they believe they were exposed to the coronavirus. Nebraska courts recently made it easier for employers to dismiss workers’ compensation claims if employees delay notifying employers about potential work injuries. I believe these notice requirements could be even stricter for healthcare workers.

Protections against retaliation for reporting coronavirus exposure and treating for coronavirus

Employees may delay exposure to coronavirus is fear of retaliation. Fears about retaliation will likely be heightened due to fear of job loss in the teeth of mass layoffs and skyrocketing unemployment.

But employees who report possible coronavirus exposure or coronavirus related safety concerns on the job are protected by a variety of anti-retaliation laws that protect workers who claim workers’ compensation and report safety concerns. I’ve written before about the relative weakness of these laws. I believe workers’ will be better served if they can report safety concerns as a group rather than individuals.

A request for time off due to coronavirus or suspected coronavirus may also be covered under the Family Medical Leave Act and the emergency amendments to the Family Medical Leave Act enacted to deal with coronavirus pandemic. These laws also have anti-retaliation provisions.

Why coronavirus exposure would be difficult workers’ compensation claims

The reason why Coronavirus infections may not be covered goes to the fundamentals of proving the basics of a workers’ compensation case: did the infection arise out of and in the course and scope of employment?

In the course and scope of employment

Course and scope of employment goes to having the injury occur within the time and place of employment. Usually in the course and scope of employment is not a disputed issue. But in a case involving a corona virus infection, it may be difficult to prove whether an individual was infected on the job or not. This could be a time and resource consuming investigation for an employee. Public health officials may do some of this legwork, but that information may not be easily accessible due to confidentiality concerns.

Workers infected during business travel are presumed to be acting in the course and scope of employment under the “commercial traveler rule.” But merely catching coronavirus in the course and scope of employment isn’t enough just to have workers’ compensation cover coronavirus related medical expenses and lost wages.

Arising out of

An employee also needs to show that the infection was connected to some risk involved with employment. In other words, employees would have to prove some link between their work duties and their infection. In some cases this could be challenging and would also involve time and expense and in investigation.

Employees may be able to argue in some circumstances that their work increased the chances of them contracting coronavirus. Health care, delivery, warehousing and essential retail employees could have an easier time proving exposure. Unfortunately, in Nebraska there is no presumption of compensability (workers’ compensation coverage) if an injury took place on the job.

Other hurdles of potential Coronavirus workers’ compensation claimants

Coronavirus cases would likely involve more investigation than a typical workers’ compensation case. But many lawyers may not want to take these cases out of economic concerns. In Nebraska, a lawyer can’t be awarded a fee for representing a claimant in a disputed medical bills case. Attorneys can take fees on disability, but temporary disability could be short in a Coronavirus case. In Nebraska, unless a disability lasts more than six weeks and an employer can avoid paying the first week of disability.

Long-term solutions

Last week the president of WILG, a group of lawyers who represent injured workers, called on the insurance industry to make it easier for workers exposed to coronavirus on the job to claim benefits. I think this is a good idea.  The difficulties in getting workers’ compensation for coronavirus indicate the need for stronger health insurance and paid leave benefits to cover employees who may not be able to rely on workers’ compensation.

Stay tuned to this blog about more information about coronavirus and his its impact on workers’ compensation and workplace law. You can also check out my podcast for more commentary.

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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Protect yourself and right to workers compensation at your holiday job

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Nearly 13 million Americans work more than one job. Some people also take on temporary jobs in retail, warehousing and delivery during the holiday season. Here are some reminders about holiday work to protect yourself and your rights to benefits such as workers’ compensation.

Temporary jobs tend to have higher injury rates – Studies show that new employees are more likely to get injured on the job. If you are starting an unfamiliar job, you are more likely to get hurt. Don’t worry temporary and new employees can still claim workers’ compensation.

Fatigue and irregular shifts contribute to accidents – Many people will work a holiday job after their regularly scheduled job. Long hours make work accidents more likely to happen. Many retail employees are required to work overnights –particularly during Black Friday. Irregular shifts can contribute to fatigue which makes work accidents more likely.

Lost-time/temporary disability based on wages for job where you are injured – Workers compensation pays temporary disability when you miss work because of an injury. The problem with getting hurt at a part-time job is that if you are unable to work because of that injury, you are only paid temporary disability based on the part-time job wages. You can’t be compensated by workers’ compensation for lost income from full-time or other jobs unless you can argue that your job is seasonal. It is hard to prove season employment under Nebraska workers’ compensation law.

But employees can be creative in adding benefits to increase temporary disability. Permanent disability is paid assuming a 40-hour week under the Nebraska workers’ compensation act. (See Neb. Rev. Stat. 48-121(4))

How an injury at a part-time job can affect employment at your full-time job – Some employers are more willing to accommodate employees who were hurt on the job. If you get hurt at a holiday job, your full-time employer may not let you come back to work unless you have no restrictions. That is a questionable practice under the Americans with Disabilities Act.

But if you have to miss work because of an injury at a part-time job, you can still apply for FMLA. Also you may want to apply for short-term or long-term disability if it is offered by your employer. A workers’ compensation attorney can help you maximize your recovery when private disability benefits pay benefits related to a workers’ compensation case.

Are you an employee or independent contractor?– The answer to this question is that if you are working a holiday job, you are an employee. Package delivery is a growing job with the expansion of online shopping? Many delivery services try to classify their workers as contractors as a way to avoid paying workers’ compensation. If you get injured as a contractor working on a delivery job, it is very likely you can bring a case for benefits under the Nebraska workers’ compensation act. But it will likely require help from an attorney to get those benefits.

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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The problem with workers’ compensation award ceremonies

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Recently three injured workers were honored at the Comp Laude Gala put on by trade publication Workers’ Compensation Central. The event included a panel with the catastrophically injured workers who overcame their injuries.

Individually the stories of these workers are all inspiring. The Comp Laude Gala should also be credited for giving these workers a place to voice their stories. Too often workers’ compensation lawyers and the insurance industry either talk to or talk about injured workers. It is good to hear their perspective.

But the idea of an event dominated by the workers’ compensation insurance industry giving awards to injured workers bothers me for two reasons — the types of injured workers recognized are atypical and focusing on individuals ignores legal and political issues that impact injured workers and workers’ compensation laws.

Award winners aren’t representative of injured workers as a whole

The Comp Laude Awards recognized workers who were catastrophically injured. Catastrophic injuries and death claims are different than your typical workers’ compensation claim in that it is less likely compensability and nature and extent of injury will be disputed by the insurer. These workers and their families are less likely to have a bad experience with a workers’ compensation insurer or claims administrator.

Catastrophic injury and death claims are more likely to involve third-party liability cases. Injured workers with a viable third-party case have a better chance of being compensated adequately than an injured worker stuck with just workers’ compensation.

In his post about the Comp Laude injured worker awards, blogger Bob Wilson classified the award winners as advocates. Other types of injured workers were either adversaries or addled types who are less likely to accept their new condition and less motivated to improve their conditions. There is some validity to these classifications. But as other observers have pointed out everyone deals with trauma differently. Heroism should not be the standard that injured workers are held to when it comes to recovery from an injury.

Maybe the industry doesn’t believe that heroism should be the standard for injured workers. But the Comp Laude awards seem to signal that workers with more mundane injuries workers’ compensation injuries that they don’t have it so bad and they should suck it up.

Ignoring the social and political context of work injuries.

Wilson pointed to two police officers who were back to work after catastrophic injuries. It takes time, usually a lot longer than the 12 weeks allotted by FMLA, to recover from a serious work injury. But police officers are usually represented by unions and union workers usually have more generous leave policies that allows them the time to recover from work injuries and return to work. Union contracts also give employees more leverage in accommodating a disability beyond what they have under the Americans with Disabilities Act. But the role of organized labor in injury recovery seems to be ignored in stories that focus on individual heroism.

Focusing on individual tales of “resilience” also diminishes the importance of injured workers and their families taking actions to change laws to improve workplace safety and workers’ compensation laws.  At least for the Comp Laude awardees, workers’ compensation laws seemed to work fairly well. But for no amount of money can replace the life of a family member killed in a work injury. The families of workers killed on the job have started organizing and advocating for workplace safety through United Support and Memorial for Workplace Fatalities (USMNF)

In the Canadian province of Ontario there is an injured workers group active in advocating for injured workers to improve workers’ compensation laws. Injured workers have also taken to protesting that provinces workers’ compensation board through the Occupy Wall Street-inspired organization Occupy WSIB. Sure Occupy Workers’ Compensation would be considered radical by Comp Laude Gala attendees and even by some plaintiff’s attorneys. But the spirit of Occupy speaks to the anger and disaffection felt by many injured workers — the so-called adversaries and addled.

Injured workers who fight for themselves and others in the political arena are advocates in the true sense. Workers’ compensation professionals, whether they represent employees or employers deal with the anger of injured workers on a regular basis. These workers don’t need lectures about mindfulness or acceptance. They need a way to channel their legitimate anger in a productive way to change workers’ compensation laws. Injured workers and their families are starting to do this across North America. Merely celebrating resilience among a select set of injured workers will not improve workplace safety or workers compensation laws.

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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Who is going to hire me with restrictions?

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Injured workers who are looking to return to work with work restrictions after an extended time of healing from an injury face some problems in returning to work. In many cases the injured worker has been off work well beyond any time covered by the Family Medical Leave Act, the Americans with Disabilities Act and or any leave of absence policy, so they are unable to return to their old job assuming they could do their old job.

Workers in this situation often ask “Who is going to hire me with restrictions?” It’s a legitimate question. Here a few do’s and don’ts from my experience as a lawyer representing injured workers.

Do: Work with vocational rehabilitation

Nebraska offers vocational rehabilitation, VR for short, as part of our workers’ compensation act. Sometimes vocational rehabilitation can mean an injured worker gets paid their so-called temporary total disability rate while they go to school. More often this means a vocational counselor helps an injured worker look for work while they are receiving those benefits. VR is the Rodney Dangerfield of workers’ compensation benefits – it often gets no respect – but it can be very helpful for injured workers. It’s also not a benefit that an insurance company will often voluntarily offer to an injured worker like medical benefits or temporary disability pay.

Nebraska also offers vocational rehabilitation through our state department of education. That fact confuses a lot of my clients when I talk about VR through workers’ compensation. But if an injured worker has settled their workers’ compensation case or is fighting their workers’ compensation case, they can use VR through the state department of education to help return to work

Don’t: Assume no one will hire you

Disability discrimination is real. That’s why there is the Americans with Disabilities Act and parallel state laws. Under the ADA, it is illegal for an employer to discriminate against a qualified employee with a disability who can do a job with or without reasonable accommodations.

What that does that last sentence mean?. In plain terms, this means that so long as you meet most of the qualifications of the job, an employer or perspective employer should work with you to make minor tweaks to a job. Sometimes this means using a stool to avoid standing. Sometimes this means using a cart to avoid heavy carrying or lifting.

In practical terms, Nebraska employers claim there is a shortage of workers. I think business interests overstate this concern for political reasons, but as the job market has improved employers seems more willing to take chances on employees.

Don’t: Fail to disclose your restrictions or injury if asked by a new employer post-hire

In order for an employee to accommodate restrictions from an old injury, they need to know about the restrictions. While an employer can’t ask you about a disability pre-hire, they can ask about a disability post-hire so long if it is job related. The “Who is going to hire me with restrictions” line can get a worker into trouble if they don’t disclose they have some restrictions to certain body parts. Again, an employer needs to work with you to some extent on accommodating an old injury,

Failing to disclose an old injury can also make it more difficult to make a workers’ compensation claim if an injury with a new employer worsens an old injury. It can also be grounds to deny a workers’ compensation claim entirely. Failing to disclose an old injury can potentially be grounds for termination for dishonesty on employment application.

Don’t: Tell anyone who isn’t your lawyer or a family member that “No one is going to hire me with restrictions.”

Going back to the “Who’s going to hire me with restrictions?” It’s a legitimate question. But if an injured worker is still fighting a workers’ compensation claim, that statement said to the wrong person can hurt a claim.

Who is the wrong person? Anyone who isn’t a family member or your lawyer.

When a vocational rehabilitation counselor, doctor, insurance company lawyer, insurance adjuster or mediator hears “Who is going to hire me with restrictions?”  they tend to think. “This person doesn’t want to work” and or “This person isn’t hurt as bad as they think they are.”

Why do they think that way? If you work on the insurance-side of workers’ compensation for an extended length of time, I think you tend to perceive cases from that perspective. Lawyers and doctors and other professionals look at work differently. Many professionals tend to live to work rather than work to live. I believe that professional class people glamorize blue collar labor and tend to get nostalgic about blue collar or service jobs they did when they were younger. Professional class people also tend to consume media geared towards professional class people that tends to cover the workplace from the perspective of business.

But regardless of why professionals involved in workers’ compensation case think this way, those professionals have a lot of influence over the value of an injured workers’ compensation claim. Injured workers need to be careful about how they communicate with these professionals.

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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