Tag Archives: preemption

Air ambulance charges continue to vex

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Concerns about air ambulance charges have migrated from the tiny niche of workers’ compensation blogs to national publications such as the Los Angeles Times.

Media outlets featured coverage of families were stuck with hefty medical bills when health insurance failed to come anywhere near paying the cost of air ambulance charges leaving consumers with charges approaching $50,000.

Air ambulances are exploiting a loophole in insurance regulation. Insurance, including health insurance and workers’ compensation, is regulated by states. But air ambulances are regulated by the Federal Aviation Administration. Air ambulance companies have been mostly successful in persuading courts that since they are regulated by the federal government, state insurance laws should be pre-empted and not applicable to them when it comes to their charges.

Many of the challenges to applicability to state laws in air ambulance charges have come from workers’ compensation cases. Workers compensation laws are state laws because the federal government had very limited power to regulate the workplace when workers’ compensation laws were enacted early last century.

Back in January I wrote about a new federal regulation that might allow some regulation of air ambulance charges. I still believe that the fact there is now some regulatory guidance on air ambulance charges may strengthen the case on preemption. The best fix to air ambulance charges may be federal legislation.

Nebraska recently enacted legislation that allows injured workers to delay the collection of unpaid medical bills that are part of a workers’ compensation case. I would imagine air ambulance companies will attempt to use preemption arguments to blunt the effects of that law in workers’ compensation cases.

Air ambulance charges are a subject of high interest to lawyers in Nebraska and other rural states. Injury victims in rural areas often require air transportation for emergency medical conditions. Air ambulance charges are often complicate the resolution of workers’ compensation and personal injury cases

Federal preemption of air ambulance charges adds other insults to injury to rural residents and rural states. Air ambulance providers base their preemption arguments on the same law that deregulated commercial air travel. Airline deregulation greatly reduced commercial air travel in rural areas to the detriment of economic development and quality of life. So the same law that largely took away commercial air service from rural areas serves to soak rural residents who suffer serious injuries and illnesses.

If nothing else maybe air ambulance carriers should be subsidized through the Essential Air Service program so that their services are not unduly expensive to rural residents.

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 Nebraska. workers' compensation and tagged , , , .

Surveillance drones: Coming soon to Nebraska workers’ compensation?

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Last summer Brody posted about the possibility of drone surveillance in workers’ compensation cases in Nebraska. Some new developments lead me to believe that drone surveillance of injured workers in Nebraska may be coming soon.

The first development is the fact that Amazon has patented its delivery drones for aerial surveillance. This technology is intended for home security but it could easily be transitioned for surveilling injured employees. Granted, technology companies tend to oversell their technological innovations, but Amazon plans on starting drone delivery by the end of this year.

I would assume that Amazon drones would be based at their fulfillment centers (warehouses). Amazon recently opened up a warehouse in Nebraska at the intersection of I-80 and Nebraska 370. (Amazon trucks and vans have proliferated in Lincoln recently) That location could make it easy to open up drone surveillance in metropolitan Omaha.

Some states have attempted to legislate against drone surveillance. But I suspect that providers of drone surveillance will argue that state laws regulating drone surveillance would be preempted by federal law. Though the issue hasn’t been addressed by the United States Supreme Court, a majority of jurisdictions have held that the Federal Aviation Act (FAA) preempts state workers’ compensation fee schedules that regulate air ambulance charges.

Could federal regulators step in to prevent drone surveillance in workers’ compensation cases? Even assuming that intervention would survive a court challenge, it would seem unlikely for now. The FAA is an agency of the Department of Transportation. The current Secretary of Transportation Elaine Chao previously served as Secretary of Labor in the George W. Bush administration. As Labor Secretary, Chao was not considered to be worker-friendly.

The best way to limit drone surveillance would be through federal legislation. That doesn’t seem likely so long as Elaine Chao’s husband remains Senate Majority Leader. (#draintheswamp) But again, if Amazon is going to be a provider of drone surveillance they are going to have bi-partisan clout to stop efforts limiting drone surveillance. Amazon already provides computing services to the Department of Defense.

But there is a federal election coming next year. If you are concerned about the weakening of workers’ compensation laws and the growing influence of Amazon, support  candidates who share those concerns. (Veiled endorsements by Jon Rehm, do not represent the views of the firm or its other partners or support staff)

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 Nebraska, Workers' Compensation and tagged , , , .

Claiming workers’ comp, when short-term disability has paid for time off because of a work injury

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A few days ago I wrote “Five reasons why office workers don’t file workers’ comp, claims for hand and wrist claims.” One of those reasons is that I think many employees use private health insurance and short-term disability to pay the cost of work injuries rather than workers’ compensation.

To understand why this hurts workers, it helps to understand the difference between workers’ compensation, short-ter, disability and private health insurance.

The difference between workers’ compensation, short-term disability and private health insurance.

With a few small exceptions, workers’ compensation is mandatory for all employers in Nebraska. Workers’ compensation includes payment for wage loss, permanent disability and medical benefits that are standard for all employers. Employers bear the cost of workers’ compensation. Finally, employees, at least in Nebraska, pay nothing for medical care under workers’ compensation. But workers’ compensation only covers expenses related to work injuries.

In contrast, private disability insurance is not required. Private disability covers income loss for occupational as well as non-occupational conditions. While health insurance coverage is mandatory for larger employers, there is a lot of variation among insurance plans. More importantly, employees generally have to foot some of the cost of private disability and health insurance coverage. Finally, under private health insurance, an employee has out of pocket expenses in the forms of co-pays and deductibles.

The seeming advantage of putting an injury on private insurance and short-term disability is convenience. Additionally, short-term disability policies sometimes pay 80 percent of lost income while workers’ compensation insurance only pays 2/3rds. Additionally, workers’ compensation benefits can undercompensate some highly paid employees.

But on closer examination, workers’ compensation is a better deal most of the time. First of all, workers’ compensation benefits are generally not taxed while short-term disability benefits are more likely to be taxed. Under workers’ compensation an employee doesn’t have to pay out of pocket for medical expenses. Out of pocket expenses for even a simple procedure covered by insurance can range into the thousands of dollars.

Workers’ compensation pays for permanent disability for hand and wrist injuries on an impairment basis for single member claims. This means the employee gets paid something if they have damage to their body, even if they can return back to their job full duty. Long-term disability policies tend not to pay out unless an employee is unable to work.

Claiming workers’ compensation after short-term disability and health insurance pay for the costs of surgery – This is permissible and is often a smart financial move for an injured worker, but attorney involvement is usually needed. In cases where an employer is forced to pay medical bills through workers’ compensation and that the client and their health insurer originally paid, the client and health insurer get reimbursed by the doctor. Out of pocket expenses are eliminated and can be paid to the employee by the provider.

In some such cases employees can get a refund from their private health insurer through the so-called the so-called common fund doctrine if the health insurer gets paid back from a workers’ compensation claim.

Employees pursuing a workers’ compensation claim when short-term disability paid can also end up ahead financially. An employee can be paid permanent disability benefits for a wrist or hand injury even if the employee is able to return back to work and has little if any functional restrictions.

But health insurers and disability insurers will attempt to claim repayment or subrogation rights under a federal law known as Employee Retirement Income Security Act (ERISA) which regulates some disability and insurance plans. ERISA is a powerful tool for insurers, but it doesn’t apply to a broad class of employers including church-affiliated employers and state and local governments.

It’s important than an attorney can get a look at the insurance plan to determine if ERISA even applies. Employees have some leverage in the way of civil fines against an insurer or employer if the plan administrator fails to provide the plan. ERISA laws generally pre-empt or overrule state laws, but since workers’ compensation laws generally regulate the business of insurance, there is an argument that ERISA may not preempt those laws. Additionally, Nebraska has a law against assignment of benefits which could help limit or eliminate repayment rights. So, in short. a lawyer has ways to push back against a private disability insurer and or health insurer claiming an ERISA lien when resolving a workers’ compensation case.

Workers’ compensation cases where private health insurance and or private disability have paid are also, for lack of a better word, messy. Part of that messiness usually involves some dispute over whether an injury was work-related. In those cases, an attorney can help negotiate unpaid medicals bills and any other repayment rights from a private disability or health insurer. Again, the result of this work is that an injured worker emerges from a work injury in better financial condition than they would have without a lawyer.

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 Nebraska, Workers' Compensation and tagged , , , , .

Federal legislation may make it easier for injured workers to change jobs

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A Jimmy John’s franchise subjected sandwich makers to non-compete clauses

Recently introduced federal legislation could make it easier for injured and disabled workers to switch jobs without fear of having to fight a non-compete agreement.

The Freedom to Compete Act, introduced by Florida Senator Marco Rubio, would ban non-compete agreements for all employees deemed to be non-exempt employees under the Fair Labor Standards Act. Non-exempt employees tend to be hourly and blue-collar workers.

The Freedom to Compete Act was prompted by reports of low-paid hourly workers being subjected to non-compete agreements. Most notably,  a Jimmy John’s franchise in Illinois subjected sandwich makers to non-compete agreements.

In October, I wrote about how the threat of a non-compete agreement may deter an injured worker from seeking work with another employer that is easier for them to do physically.

Non-competes in Nebraska

Nebraska outlaws restraints of trade by statute  and by case law. But non-compete agreements can be enforceable if they are reasonable in scope – for a limited time and geographic area – and ancillary to a contract of employment.

The general test of whether a non-compete is enforceable in Nebraska is that it is 1) not harmful to the public 2) not greater than necessary to protect employer’s legitimate interest and 3) not unduly harsh or oppressive to employee.

Courts in Nebraska tend to focus on whether the compete is too broad to protect the employer’s legitimate interest. A non-compete would likely to be held to be unenforceable under this clause if the employee had no personal or business contact with customers or prospective customers, didn’t know or have access to confidential information, has no skills or knowledge different than what they would have acquired in another business and the employer had no trade secrets regarding their industry.

The issue of whether a non-compete is unduly harsh is a separate issue. My feeling is that a good argument could be made that changing jobs as a way of essentially self-accommodating a work injury would fall into that category. I believe the Zweiner v. Becton-Dickinson East  case would bolster such an argument, but litigation is almost always uncertain and it can be costly. An injured worker looking at the prospect of a workers’ compensation claim may not be willing to take on a non-compete fight as well.

Other questions about Freedom to Compete

Other commentators have pointed out that Freedom to Compete could make already contentious non-compete cases even more contentious by turning them into employee classification cases.

Back in October, I wrote that non-competes need to be fixed legislatively. Some states have began introducing legislation to further limit non-compete agreements, I question whether Freedom to Compete would pre-empt state laws on non-compete clauses for white collar FLSA exempt employees. I wonder if Freedom to Compete isn’t a federal effort to head off state level reforms and even federally preempt some favorable state laws on non-compete clauses for white collar employees..

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 FLSA, Nebraska, non-compete agreements, Workers' Compensation and tagged , , , , , .

A quarter-step forward but two steps back on fee scheduling air ambulance charges in workers compensation

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Congress may have implemented a partial legislative fix in response to a growing number of state and federal court decisions, the most recent out of the 4th Circuit Court of Appeals, holding federal law regulating aviation preempts workers’ compensation fee scheduling of air ambulance bills.

The FAA Reauthorization Act authorized the Secretary of Transportation to appoint an advisory committee to suggest rules about charges for air ambulance services. But this “fix” may actually give air ambulance companies more power to avoid having their charges “fee scheduled” under state workers’ compensation laws.

The main controversy about air ambulance charges is that users, including injured workers, can be stuck with paying the difference between what insurance paid and what is billed. In workers’ compensation, when a provider accepts the “fee schedule” then an employee can not be billed further by the medical provider.

But since many courts hold that a state cannot regulation air ambulance charges, state fee schedules do not apply to air ambulances in that situation. This is because when a state law conflicts with a federal law, the federal law preempts the state law.  Charges for air ambulances are often in the tens of thousands of dollars because of the cost of helicopter flight.

On a negative note for workers, the fact that the Department of Transportation is issuing rules regarding air ambulance charges could strengthen the case that the regulation of air ambulance expenses preempt state workers’ compensation fee schedules.

In another downside for workers, the air ambulance industry will get three members of the advisory board that will be helping to draft the rules, while there will be one “consumer representative” as well as two other representatives generally representing the health insurance industry. There is a chance that consumer interests could get short-shifted by the Department of Transportation.

One upside for workers is that the legislation indicates that it should breakdown air ambulances expenses between transportation and non-transportation expenses. Non-transportation expenses could be more likely to be subjected to fee schedules which would reduce the cost of air ambulance services.

Recent case law would indicate there was an emerging majority view that the fee scheduling of air ambulance charges under state workers’ compensation laws would be preempted by federal law. The 4th Circuit Court of Appeals upheld a federal court in West Virginia that held that state regulation air ambulance charges would be preempted by federal law. The 4th Circuit joined the 10th Circuit, 11th Circuit and courts in Florida, Kansas, Kentucky, North Dakota, Texas  and West Virginia in holding that workers compensation fee scheduling of air ambulance services are preempted by federal law.

Three things disturbed me when I read over the recent 4th Circuit decision and the West Virginia federal decision it upheld. The first thing that bothered me was any lack of discussion by the court about how fee schedules fit into the beneficent purpose of workers’ compensation laws. Legal analysis oftentimes requires balancing of different interests, but there was no more than cursory balancing of interests in the latest air ambulance case.

Fee schedules were generically described as a “regulation” in the most recent air ambulance case. The deregulation of air service was described by the District Court as an unvarnished good. Recent press coverage has demonstrated how business interests have worked to influence the federal judiciary. The recent air ambulance cases show a strong anti-regulatory bent and how that influence may manifest in court decisions.

Finally, the District court upheld a contracts clause challenge to state workers’ compensation fee schedules. I don’t know if the contracts clause argument would have succeeded without the pre-emption argument, but the contracts clause has historically been used to strike down workplace safety and workplace rights laws. As a plaintiff’s attorney, I don’t like seeing the contracts clause being used to weaken workers’ compensation laws. Again, this could show how business interests are influencing the federal judiciary.

But if Congress has legislated on air ambulance fees and the DOT will be regulating the area, there is some possibility that Congress or the DOT could change those rules and regulations in a way that would help workers, by say, ruling that air ambulances have to accept workers’ compensation fee schedules if one is in place. Ideally air ambulances would be excluded by Congress from the definition of common carrier as argued by proponents of the West Virginia fee schedule for air ambulances.

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 Constitutional law, preemption, Workers Compensation and tagged , , , , , .

Are surveillance drones watching injured workers in Nebraska?

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An eye in the sky watching injured workers?

Nearly 7 years ago, I wrote a blog about employers and insurance companies using surveillance of injured workers to fight paying workers’ compensation benefits in hopes of finding any reason to reduce or deny an injured workers name. Recently, our Plaintiff lawyer colleagues in other states have noticed use of drones for video surveillance of their clients.

I have not personally experienced “drone surveillance” of any of my clients yet, but I am sure the insurance companies will soon find a way to follow suit in Nebraska. In discussions with other workers compensation lawyers throughout the country, other lawyers have that mentioned insurance companies have used drone-surveillance against their clients in multiple states.

Is drone surveillance even legal? Well, that might depend on what state you live in. However, the FAA does have guidelines on the use of drones and restrictions of how those drones may be operated. Some surveillance tactics may run afoul FAA rules.

Also, many states have enacted their own laws to protect citizen’s privacy from drone-use and cameras. Here are a few examples:

Arkansas forbids the use of drones to invade privacy

California forbids the use of drones to invade a person’s privacy and to record anyone without his or her consent.

Texas Code Section 423.002(a) lays out specific situations in which drones with cameras may be used and insurance surveillance is not one of them.

Virginia makes it a criminal misdemeanor if drones are being used to harass if given notice to desist.  

Florida also prohibits a person from using a drone to record someone if such person has a reasonable expectation of privacy, with the presumption being that someone has a reasonable expectation of privacy if they are on their own property. 

While it is good that states are acting to protect privacy from the intrusion of aerial drones, there may be a legal fight over whether federal rules should preempt state laws about drones.

While aerial drones may be used to sniff out workers’ compensation fraud by employees, I doubt they will be effective in stamping out the larger problem of employer and provider fraud in workers’ compensation.

In summary, while I have not seen it in Nebraska yet, it is a possibility that some day drone surveillance will be used here. However, given all of the regulations (along with the cost and conspicuousness of drones) it is doubtful that drone surveillance would be used. If it is used, Nebraska may have to enact some laws similar to these other states with regards to drone use.

 

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 Fraud, Nebraska, surveillance, Workers Compensation and tagged , , , , .