Tag Archives: retaliation

A double-standard on workplace violence?

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Employment laws in the United States are skewed extremely for the benefit of employers. Workplace violence is a prime example. Consider two examples about violence in the workplace

Take the convenience store clerk working overnight in a store that has been robbed before. There are risking their job by refusing to work at an unsafe job. In most places, there is no requirement for protective barriers. In most states, they can’t collect workers’ compensation for mental trauma without a physical injury.  In most states, their sole remedy for injuries from workplace violence is workers compensation, which may provide very limited compensation.

An employee who may be under stress and/or suffering from mental illness may make an off-hand remark or unserious remark about violence. That person can be fired for largely without repercussions in the name of safety.

So in many respects, the threat of violence, even if vague or taken out of context. in the workplace is taken more seriously than actual violence. It’s easy to square this seeming contradiction when you realize employment laws in this country are written to benefit employers. The concept of employment at-will, created by a legal academics in the mid-to-late 19th century, and implemented by judges is the root cause of the imbalance of labor-management relations in this country.

So what can be done to protect employees from actual workplace violence, aside from outright abolishing employment at-will?

OSHA standard on convenience stores

I think OSHA should implement nationwide safety standards for convenience stores. OSHA has been pondering this idea since the 1990s. I know from my informal discussions with local OSHA staff, that this idea is popular with OSHA staff. A rule would improve safety in convenience stores.

I also think a formal rule from OSHA would make any retaliation case stronger under Neb. Rev. Stat. 48-1114. I believe that the OSHA general duty clause would give convenience store workers a way to bring a retaliation claim for reporting unsafe working conditions. But management often argues that vague references to OSHA regulations don’t comprise a protected activity. An OSHA rule would give convenience store and other retail workers a clear legal leg to stand on when reporting workplace violence.

Pass the PRO Act

The vast majority of the time, a union contract provides more on-the-job protections than any government regulation or anti-discrimination law. The House recently passed the Protecting the Right to Organize or PRO Act, that it would make it easier to organize unions. This would be a boon for workplace safety for all workers.

The same troll army of freelance writers, literal neo-liberal shills, who whined about AB5 in California are now attacking the PRO Act. I support the PRO Act. My only concern about the PRO Act is that it gets used by Uber, Lyft, Door Dash, et al. to implement half-a— “portable benefits” schemes under the guise so-called “sectoral bargaining.”

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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Hurt by (and/or fired for) “violating” your work restrictions

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Damned if you do, damned if you don’t. That’s the dilemma for many injured workers under doctor-given work restrictions.

Injured workers are damned by being subject to discipline if they refuse to work above their restrictions, but they can also be disciplined for doing work “above” their restrictions.

Sometimes “violating” work restrictions can even lead to workers’ compensation benefits being denied.

I thought about this topic after I read a blog post by Thomas Robinson involving a Tennessee worker who hurt himself lifting 29 pounds when his permanent restrictions were 25 pounds. Fortunately, the Tennessee Supreme Court stated that in that case that was not sufficient grounds to deny benefits.

But it “violating” work restrictions can be grounds for denying workers compensation benefits in Nebraska in certain circumstances. Primarily, if an injured worker misrepresents their old injury to a new employer.

Misrepresentation as a defense to paying workers compensation benefits in Nebraska

In Nebraska, an employer can deny benefits if an employee misrepresents their work restrictions in an employment application and that misrepresentation leads to the work injury. I think this law has to be interpreted in combination with ADA and similar disability discrimination state laws. I think checking the box “yes” on employment application of whether you can do a job with or without reasonable accommodation shouldn’t be enough to sustain the misrepresentation defense. But not disclosing an old injury in a post-hire physical or health assessment is stronger evidence in my view.

Some of the more creative minds on the management side argue that concealing an old injury from an employer is willful negligence by an employee. Willful negligence is also grounds to deny workers’ compensation benefits. The Tennessee decision more or less rejected that argument and would be good persuasive authority on the issue.

Fired for violating work restrictions

Can an employer fire you “violating” work restrictions? It depends on the circumstances. If you’re on a 10 pound restriction and you get caught doing cross-fit, I would say yes. But a case where you lift 29 pounds with a 25 pound restriction is a closer call. It’s unlawful to fire some in Nebraska, and most other states, for filing a workers’ compensation claim. Firing someone for a petty and unintentional “violation” of work restrictions would seem suspect and could infer that the workers’ compensation claim was the reason they were fired.

Why I put quote marks around “violations” of work restrictions.

I’m not putting quote marks arounds “violating work restrictions” just to be funny. Maybe I need to explain the joke. Anyone who knows anything about workers’ compensation and is being honest, knows that work restrictions are just an estimate. Even restrictions from a valid Functional Capacity Evaluation are more or less estimates of work abilities.

But what if an employee is fired for exceeding work restrictions that weren’t disclosed?

Fired for concealing work restrictions?

I think these are close cases. As a plaintiff’s lawyer, I would argue that someone who was fired not disclosing a work injury still has a retaliation claim. After all, but for the employee filing a workers’ compensation case, the employer would not have discovered the concealment and fired the employee. Maybe that seems like an overly technical argument, but does the argument at least shift the burden on to the employer to argue an equitable defense like laches or unclean hands? I don’t know the answer to that question, but if there is other evidence of retaliatory motive then concealing an old work injury may not be a lawful reason to terminate an employee.

Don’t risk getting fired

However, as an employee you don’t want to take the risk. The ADA requires that employers attempt to work with you to accommodate a disability. If you are concerned about returning to work after an injury, don’t conceal old injuries if they could reasonably impact your ability to do your job. Often time there are simple fixes that allow you to complete your job duties. The Job Accommodation Network has suggestions about how to accommodate disabilities. Try to use those resources and/or work with your co-workers to try to accommodate your disability. Unions are also a great resource for accommodating an injury, use them when they are available.

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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“Wildcat strikes”, workplace safety and public sector workers

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The Lincoln Education Association (LEA), the union that represents teachers at Lincoln Public Schools, moved quickly and clearly to discourage a rumored mass sick out by teachers in Lincoln late last month. The sick out was meant to protest working conditions related to the COVID-19 pandemic.

Walking off-the-job in mass or mass call-ins without union approval or without a union period is sometimes known as a “wildcat strike.” But while the LEA was correct in stating a coordinated sick out by teachers is illegal in Nebraska, most private sector employees have the right to walk off the job due to safety conditions under certain circumstances.

When are wildcat strikes permissible?

Wildcat strikes are permissible under the National Labor Relations Act, the Labor Management Relations Act and Occupational Health and Safety Act. While the standards for what is permissible vary by law, a worker contemplating organizing a mass walkout should be able to show a serious and imminent harm from working conditions. Employees in unionized workplaces actually may have less ability to organize wildcat strikes as labor law discourages that practice in unionized workplaces.

Individual refusal to do an unsafe job

The Nebraska Fair Employment Practices Act could protect an individual employee from retaliation for refusing unsafe work or opposing unsafe working conditions. Arguably, the act would also protect organizers of wildcat strikes. In some cases, reporting a workers’ compensation injury can also fall within the Nebraska Fair Employment Practices Act. While workers also common law protections against workers’ compensation retaliation, bringing the case under the Nebraska Fair Employment Practices Act can entitle workers to awards of attorney fees and front pay not available in common law cases

The spread of strikes and sickouts

Mike Elk of Payday Report has written extensively about strikes and other work stoppages related to COVID-19. One of these labor actions includes a sick out by teachers in Boise, Idaho. Unfortunately, workers don’t have a lot of good options to protect themselves from unsafe conditions related to COVID-19. OSHA has been criticized for lax enforcement. Workers’ compensation laws aren’t designed to compensate workers for infectious diseases, even assuming those laws cover infectious disease at all. Finally, even though workers’ compensation is an inadequate remedy for COVID-19, the so-called exclusive remedy of workers’ compensation usually prevents workers from bringing cases directly against their employers about working conditions.

If you have a union, get involved in your union

Some workers are still fortunate enough to enjoy union representation. If you are one of those workers, join your union and get involved in your union. Unions make the workplace more democratic and allow for employee input, but unions work best when workers get involved. One of my pet peeves is listening to clients or potential clients telling me “the union doesn’t do anything.” Some unions are better than others, but even a weak union gives most employees better benefits and more job protections than they would be entitled to otherwise as an at-will employee.

Public sector labor law reform in Nebraska?

Public sector employees cannot strike in Nebraska. Nebraska law is clear on that issue unlike more ambiguous laws in West Virginia, Oklahoma and Arizona that had teacher strikes in 2018.  Nebraska law also holds teachers and other employees can’t engage in work slow downs or sickouts. In fact it is a crime to even advocate or advise public sector employees on workplace strikes and slowdowns and to support strike funds. While Nebraska laws on public sector strikes may be vulnerable to some First Amendment challenges, public sector strikes and work slowdowns remain a very risky proposition for participants.

So will Nebraska reform public sector labor law to harmonize with federal law or to make it less punitive towards public sector workers protesting unsafe working conditions? I think that’s a doubtful proposition. The rules of the Nebraska Unicameral require broad support for legislation. For example, expanded protections for essential workers were killed by what amounts to a filibuster by a bloc of right-wing senators.

Nebraska is also one of the few states that hasn’t adopted charter schools which are opposed by teachers’ unions. I’m not sure that the Nebraska State Education Association, the union representing teachers in Nebraska, would want to risk alienating support for public schools with proposals that could seem radical to many Nebraskans, including teachers.

But ultimately increased labor militancy among teachers and other public sector workers could help preserve the role of bargaining for public sector employees. In 2011, some in the business community sought to weaken public sector unions. That effort ultimately failed. I think a newly energized labor movement among teachers makes it more likely that future efforts to weaken public sector unions in Nebraska will fail as well.

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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Why does your doctor want you to sign a “work restriction agreement”?

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I saw something new in the world of workers’ compensation last month; a “work restriction agreement” between an employee and a doctor. The agreement raised my eyebrows when I first saw it and it raised my eyebrows again when I dug it up to write this post.

The more I thought about this agreement, the more I saw the handiwork of a nurse case manager. Nurse case managers have all sorts of advantages over injured in workers in a workers’ compensation claim. In my mind, this agreement really seemed like running up the proverbial score.

So why did this agreement rub me the wrong way?

Trust and stigma in workers’ compensation

When I saw the agreement, I thought about the agreements that doctors often make patients sign in order to receive opioid pain medication. To some extent those agreements are well-intentioned because they can inform patients about how to take medication properly.  But the agreements have been criticized for undermining the doctor-patient relationship and stigmatizing users of prescription drugs as potential addicts. Injured workers are equated with drug addicts.

Like drug addiction, issues about doctor-patient trust and stigma are major issues for injured workers. Many injured workers refuse to claim workers compensation benefits out of fear as being stigmatized as freeloaders looking to “milk the system”. But even if workers overcome that stigma and claim benefits, most workers are surprised to find how little privacy they have regarding their health history once they claim benefits.

The role of the nurse case manager

One of the most visible examples of the relative lack of privacy in workers’ compensation claims is the nurse case manager. A nurse case manager is usually a nurse hired on behalf of the workers compensation insurer, but it can be someone employed directly by your employer. This nurse case manager will suddenly pop up in the examination room when you visit your doctor or a doctor about a work injury.

We tell our clients to tell that nurse case manager to scram (politely of course). That might be less of an option if the nurse case manager works at your company and is more or less in management. An employee may feel pressured to allow a company nurse case manager in an exam room out of fear of losing their job or being disciplined. Nebraska law makes it illegal for employers to retaliate against employees for claiming workers’ compensation. I’ve never seen a case related to an employee telling an in-house nurse case manager to leave an examination room, but it could be an interesting case.

But even if you can get the nurse case manager out of the exam room, you can’t stop a nurse case manager from talking with your doctor privately. So, what is it that the doctor and the nurse case manager talk about? Oftentimes it’s whether an employee can return to work. That’s where these “work restriction agreements” come into play.

How the work restriction agreement works and can work

I think nurse case managers are driving the bus on “work restriction agreements.” Some doctors like nurse case managers. I think part of reason some doctors like nurse case managers is oftentimes a nurse case manager will have access to written job descriptions that help doctors to tailor work restrictions.

The work restriction agreement I saw incorporated a written job description. The agreement contained a provision that the workers work restrictions were just exactly as described by the doctors note. This would limit the employee’s ability to testify to the extent of their own restrictions at trial.

In addition, the agreement contained a provision that the employee would refuse work that exceeded her restrictions. Interestingly enough, the agreement created no requirement that the employer not ask or force the employee to exceed their stated work restrictions.  Overall the document created obligations for the employee, but none for the employer. (If this sounds like collusion, it is and you can read more about why this collusion is usually permitted here.)

Given the one-sided and legalistic nature of the “work restriction agreement”, I am not surprised it showed up in cross-examination like questioning from an employer’s lawyer in a workers’ compensation deposition. The nurse case manager was essentially helping to create what amounts to attorney work-product to be used in a workers’ compensation case. (It could also be used in an employment law claim as well.) But while a “work restriction agreement” is a fairly blatant effort to create evidence, nurse case managers have more subtle tactics.

In Nebraska, medical dictation or charting can be admitted into evidence in a workers’ compensation case without worries about hearsay or foundation objections. A good nurse case manager can influence doctors to create medical evidence that is helpful for an employer.

Why nurse case managers have clout

Of course, insurers have more blunt tactics to influence medical evidence – they pay the bill. I remember sending a questionnaire out to a doctor in a case because their dictation wasn’t enough to help prove my client’s case. I was bluntly told by clinic staff that since “workers compensation already paid the bill” that they saw no reason why they needed to fill out additional paperwork. Paying the bills gives insurers a lot of influence and make their nurse case managers seem a lot more persuasive than they would be otherwise.

Many nurse case managers also have long-standing relationships with doctors which leads doctors to trust nurse case managers. It seems nurse case managers aren’t happy with their advantages and are seeking to further their advantage over injured workers through the use of forms like “work restriction agreements” that further stigmatize injured workers.

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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Hard but not impossible: COVID-19 workers’ compensation claims

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Photo courtesy of QZ.com

An employee exposed to COVID-19 at work is likely limited to collecting workers’ compensation benefits. COVID-19 exposures are difficult workers’ compensation cases that have been made more difficult by guidance from the United States Department of Labor.

But difficult doesn’t mean impossible. Some COVID-19 exposures could lead to death, serious injury and or extensive medical expenses.  Here is how I think workers should pursue workers’ compensation benefits for COVID-19 exposure

What kind of COVID-19 workers compensation claims are worth bringing

Nebraska awards substantial workers’ compensation benefits to the survivors of workers who die due to work-related causes. Severe but not fatal cases of COVID-19 that lead to hospitalization can lead to substantial medical expense. COVID-19 can also have permanently disabling effects. In Nebraska, loss of function from COVID-19 is paid on how the injury impacts a workers’ ability to earn a living.

While a mild case of COVID-19 probably wouldn’t justify bringing a workers’ compensation claim, COVID-19 symptoms may flare up in the future. So regardless of the severity of the COVID-19 exposure, it would make sense for a worker who thinks they got COVID-19 on the job to investigate how they may have gotten the virus.

Playing amateur detective

Most COVID-19 cases will likely be proved by circumstantial evidence. This means that workers should try to rule out non work-related exposure and rule in work-related exposure. This may be challenging because workers who are likely to exposed to COVID-19 on the job are also likely to have friends and family members who have been exposed to COVID-19 who could have exposed them to COVID-19 outside of work.

Workers who have been exposed to COVID-19, or their friends and family, need to do the leg work to gather the facts about possible COVID-19 exposure before memories fade and supporting documentation disappears.

Why you will probably need an attorney to pursue a COVID-19 workers’ compensation case

I believe insurers and employers will deny most COVID-19 workers’ compensation claims for two reasons. One, the cases are hard to prove. Two, many insurance policies apparently have virus exclusions. A lawyer can help a worker, or the family of a worker, exposed to COVID-19 gather facts to support their case.

In Nebraska, lawyers can subpoena documents from employers as well as serve written questions called interrogatories, requests for admissions and requests for production to help prove up a case for COVID-19 exposure on the job. Lawyers can also take depositions. I’ve written before how some employers will likely cover up and under report COVID-19 exposure. But in Nebraska employees should have the ability to obtain absence logs, occupational health records and other information outside of typical injury reports that could circumstantially prove COVID-19 exposure on the job.

I think lawyers pursuing workers’ compensation claim related to COVID-19 in Nebraska need to file petitions and serve discovery as soon as possible. COVID-19 claims will likely require more factual investigation than a typical workers’ compensation case.

Cooperation from co-workers and fear of retaliation

To some extent proving COVID-19 should be covered by workers’ compensation will probably require some cooperation from co-workers. Concerns about retaliation from an employer are legitimate. I’ve also criticized what I think are the weakness of retaliation laws recently. But Nebraska law outlaws retaliating against employees who claim workers compensation benefits. Does that protection extend to co-workers who assist in a workers’ compensation claim? I’m not sure, but recently a federal judge interpreting Nebraska’s workers’ compensation retaliation law held that the law provides broad protections.

Good facts also make good law. What that means is a co-worker who gets fired for helping a co-worker get workers’ compensation benefits may create law that formally extends the protections of workers’ compensation retaliation in Nebraska.

Though mainstream media has not widely reported this news, credible outlets like Payday Report and Law 360 have reported about widespread strikes and employee walkouts over COVID-19 safety related concners. So far, no walk outs have been reported in Nebraska. But supporting a co-worker in a workers’ compensation claim is an act of solidarity like a walk out or strike. The ability for workers to recover workers compensation benefits for COVID-19 exposure may require acts of solidarity.

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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Who do rules about texting and driving really protect?

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OSHA came out with guidelines about mobile device use while driving by employees. So why do I have mixed feelings something that most people would think is a good idea?

I believe texting and emailing while driving is a terrible idea and a clear safety hazard. But, management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims.

Management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims. They can argue either that mobile device use by an employee by driving is a deviation from employment duties. That may be difficult to argue if a travelling employee was using a mobile device while driving for work purposes.

In the alternative the employer may affirmatively allege that mobile device used was a safety violation that would disqualify them from receiving workers’ compensation. This is a difficult burden for an employer to meet. OSHA suggests that employers set up a “disciplinary action system” for workers who violated driving safety rules. Having written rules against a practice can make it easier for an employer to defeat a workers’ compensation claim by arguing an employee was willfully negligent.

Generally, workers compensation laws are favorable to workers who are injured while travelling, this known as the travelling employee doctrine or presumption. But in fairness to the insurance industry, this legal doctrine developed before the use of mobile phones.

In fairness to OSHA, their guidance on mobile phone usage was also meant to protect workers from being forced to use mobile devices while driving. Those who work and live in relatively remote areas know the term “windshield time” to describe long car trips. There is intense pressure to use that time productively. There is a strong temptation to text or email while driving even though you know the hazards.

The guidelines may give employees some protections against retaliation if the refuse to text or email while driving. But anti-retaliation laws are only as good as the court cases that interpret them and some courts have recently began to curtail protections afforded by those laws.

I speak from first-hand experience. I do a lot of long-distance driving for work.  If areas like rural Nebraska were better served by air, rail and bus service, I wouldn’t need to drive so much. The same goes for many workers in states like Nebraska. But thanks to transportation deregulation those of us who travel to and within rural areas are stuck in our cars during business hours.

Texting and driving creates risks for other motorists in addition to the drivers who text and drive. But the law already punishes drivers who cause accidents through use of their mobile devices. Drivers who text and drive can be punished criminally and be held accountable in civil cases. Accountability for employers who create dangerous working conditions is mostly limited to state workers’ compensation laws.

I believe the risk of distracted driving is apparent to any adult. Why does OSHA need to issue guidance?  I suspect it has something to do with my point about employers using rules against cellphone usage while driving to deny workers’ compensation claims.

But while OSHA is issuing guidelines about the obvious risk of texting and driving, the United States Department of Agriculture is overlooking the obvious risk of overuse injuries to packinghouse workers. The USDA in the Trump and Obama administrations have allowed meat processors to speed up lines to the detriment of workers. I hope if there is a new presidential administration next year, that administration will use its rule-making power to make workplaces safer and not give employers ways to dodge their responsibilities under state 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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Neb. Ct of Appeals tightens notice requirements in workers’ compensation cases

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The Nebraska Court of Appeals held that waiting 38 days to report a work injury was enough delay in reporting to dismiss a workers’ compensation claim. Though what constitutes timely notice is a case by case determination, the Bauer v. Genesis Health Care case is troubling for workers for many reasons.

  1. Fear of retaliation not an excuse for not reporting injury – In the Bauer case the employee was worried about his job security and testified this one reason he delayed reporting his work injury. The suspicions about termination weren’t unfounded as the employee as put on leave 10 days after his injury. The Nebraska Court of Appeals disregarded this argument and found the plaintiff would have still been able to report his injury.
  2. Change in personal plans can trigger duty to report work injury – The law requires that an employee report an injury as soon as practicable. “As soon as practicable” can vary by the circumstances. The key fact is that the employee knows something could be wrong because of a work injury. In this case the fact the employee cancelled a personal trip a week after the work injury was one fact that persuaded the court the that plaintiff did not report his injury as soon as practicable.
  3. Stricter reporting standards for medical personnel – The court thought it was relevant that the injured worker was a physical therapy assistant was relevant to their conclusion that the employee did not report their injury as soon as practicable. Their theory was that professional knowledge should have lead him to conclude he needed treatment and that the injury should be reported. I wouldn’t be surprised to see insurers and their attorneys try to broaden this argument to all types of medical personnel.
  4. Change in work duties can trigger duty to report – The Bauer case was unusual in that since he was a manager he could place himself on light duty without asking permission. Usually asking for light duty would be enough notice for an employee to meet the notice requirement. But since Bauer didn’t ask, he didn’t put his employer on notice about his injury. Employees who work with co-workers to change job duties to accommodate a work injury may be vulnerable to having their workers’ compensation cases dismissed for lack of notice, if they don’t report a work injury to a supervisor soon after their duties change.

Other takeaways from Bauer

  1. Referral to specialist probably triggers a duty to report — Bauer cited to Williamson v. Werner, where the court held that an employee should have reported their injury to their employer after they reported it to their doctor. That didn’t happen in Bauer as the employee denied he was hurt at work at his first two medical visits. The court thought it was relevant that at the first visit after the work injury that he was referred for an MRI and to a specialist, yet did not report his injury to his employer.
  2. Appearances matter – Bauer had some other bad facts working against him: 1) He didn’t report his work injury until after he had been placed on leave and 2) He twice denied that he was hurt at work to providers. The court stated an employee who provides proper notice of an injury is one that is acting in good faith or honestly. Changes in stories about how an accident happened or irregularities in reporting don’t create an impression of good faith even if they can be explained. But if fear of termination is the explanation of why an employee doesn’t report a work injury, the Bauer decision indicates Nebraska courts won’t consider that factor.
  3. How the fear of retaliation harms workers’ compensation and retaliation claims – The Bauer case represents a common situation where an employee doesn’t turn in a work injury over fear of retaliation. Workers’ compensation retaliation is unlawful, but it is difficult for an injured worker to claim retaliation if they don’t report their work injury. So fear of retaliation can undermine both a workers’ compensation claim and a retaliation claim.
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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