Ohio State lines up to run a QB counter against Nebraska
My colleagues Paul McAndrew from Iowa and Bernard Nomberg from Alabama have blogged about the tragic but common situation of an employee who puts a work injury on private health insurance only to have health insurance deny payment because they discover the injury is work-related.
It is another example of injured workers getting squeezed. But in the right circumstances an injured worker can squeeze back— a counter-squeeze if you will.
Nebraska also prohibits employers from retaliating against employees for claiming workers’ compensation benefits. Retaliation is an adverse action related to the terms and conditions of employment. Denying payment of wages, in the form of health insurance, because the employee has filed a workers’ compensation claim should be retaliation.
So employers denying workers’ compensation and health insurance benefits can find themselves facing a wage and hour and retaliation case. Of course, these types of cases are a lot more complicated than described in the last two paragraphs.
In order for the counter-squeeze to work, it is best to have an employer who is at a minimum self-insured for the purposes of health insurance and ideally self-insured for health insurance and workers’ compensation. Tyson, Crete Carrier and Werner Enterprises are large Nebraska employers who fit into the latter category. Self-insurance is important because it allows the employee to link the decision to deny benefits to the employer. In theory you can still make a counter-squeeze work when outside insurance companies are involved, but that turns the case into a civil conspiracy case that can be more costly and difficult to prove.
Wage and hour cases also require detailed proof of medical bills and existence of a valid contract for payment of benefits. If an employee appears to have misrepresented how an injury happened, an employer may be able to fire an employee regardless of any retaliatory motive on their part. But the employee who at first blush may have “screwed up their case” by paying for their workers’ compensation injury with their private health insurance, may be able to salvage a good outcome in their work injury case.
The main issue in this case is whether time spent putting on and taking off protective gear at the beginning and end of break and meal times benefited Tyson or the workers. If the jury determines the time spent donning and doffing mainly benefits Tyson, the employees will win. Tyson’s argument is that the time spent donning and doffing gear was during break time so the time primarily benefited the employee. Continue reading →