Tag Archives: WILG

Compstitutional Law 101: Part 2: Will Sveen signal a move to judicially dismantle the “grand bargain”?

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Watch out for what these three could say in Sveen v. Melin

WILG is hosting a summit on the constitutional challenges in workers’ compensation on April 18th, I won’t be able to attend, but this post and my last post are my contribution to this ongoing discussion.

Stating that “a seemingly obscure case could have far-reaching implications” is one of the most overused clichés in legal blogging and journalism.  But a case involving a dispute over the proceeds of a life insurance policy might impact the constitutional basis for workers’ compensation and other state laws protecting employees.

In March, the Supreme Court heard oral argument in Sveen v. Melin (paywall). In Sveen, a former spouse was challenging a Minnesota law automatically removing a spouse as beneficiary of an insurance policy upon divorce. The grounds for the challenge is the so-called contracts clause of the United States Constitution which prohibits states from passing laws that impair the obligation of a contract.

Pro-corporate legal commentators have long lamented the demise of the contracts clause at the expense of laws enacted by states under 10th Amendment police powers. When these pundits and academics write about a “contracts clause revival”, they are really writing about diminishing the rights of states to enact laws under their police powers.

One of the most important set of state laws enacted under police powers are workers’ compensation laws. In New York Central Railroad v. White  state workers’ compensation laws were found to be constitutionally enacted under a state’s 10th Amendment police powers.  State laws regulating workplace safety and the ability to injured employees to seek legal redress were one of the primary drivers for the broad recognition of police powers in the late 19th century. A good discussion of the background behind the expansion of state police powers is found in the 1898 Supreme Court case of Holden v. Hardy.  In short, the Supreme Court found that state workplace safety laws were a response to the new industrial economy of the late 19th century and valid exercises of state police powers.

University of Chicago Law Professor Richard Epstein argued that minimum wage laws violated the contracts clause.  It’s not much of an intellectual stretch to argue that mandatory workers’ compensation laws would violate the contracts clause using Epstein’s interpretation of the contracts clause. A gig economy employer like Uber subjected to a state workers’ compensation law might argue that they should not be subjected to such a law under the contracts clause.

On April 2nd the Supreme Court reversed 70 years of precdent in narrowly construing exceptions to the Fair Labor Standards Act in the Navarro case. Navarro will likely have the effect of pushing plaintiffs to file more wage and hour cases under state laws. A revived contracts clause could cut off or curtail opportunities for justice for victims of wage theft in state court.

A potential contracts clause revival should concern advocates for injured workers for other reasons. In recent years, attorneys for injured workers have had a fair amount of success in overturning anti-worker changes to workers’ compensation laws based on state constitutions. That avenue would likely be blocked with a full-blown contracts clause revival.

In the late 19th and early 20th century, state laws regulating workplace conditions were struck down under 14th Amendment substantive due process. But substantive due process also allows claims for a broad variety of civil rights that are disliked by judicial conservatives, so the substantive due process clause is disfavored by courts.  The contracts clause allows courts to strike down worker-friendly state laws without creating a mechanism for expanding rights for suspect classes of individuals like prisoners or victims of police brutality. In New York Central v. White, the Supreme Court considered and rejected arguments overturning workers’ compensation laws on substantive due process grounds and contracts clause grounds.

Finally, a broad interpretation of the contracts clause would allow the Supreme Court to overturn state workers’ compensation laws while still maintaining the narrowed interpretation of interstate commerce the Roberts court appear to be endorsing in NFIB v. Sebelius. As I wrote in a post last week, a narrow construction of the commerce clause could be a high hurdle in enacting worker-friendly chagnes to workers’ compensation laws on a federal level.

Sveen v. Melin will likely be decided this spring. If the Supreme Court strikes down the Minnesota law based on the contracts clause, I will be interested to read the language of the opinion. I will also be interested in reading any concurring opinions from hard core conservatives like Gorsuch, Thomas and Alito as those opinions could be a clue as to where the court could be going on contracts clause jurisprudence. It is unlikely that Sveen v. Melin will be grounds to invalidate state workers’ compensation laws. Supreme Court decisions are limited to actual cases and controversies that are presentd to them. But Sveen could be another step in undercutting New Deal and Progressive Era refroms.  The Supreme Court has been chipping away at New Deal era laws in cases like Navarro and the Tackett decision in 2015. A bad decision in Sveen might accelerate the rollback of pro-worker laws.

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

This entry was posted in Workers Compensation and tagged , , , , , .

Compstitutional Law 101: Part 1: Air ambulance cases call into question federal role in workers’ compensation

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Air ambulances are crucial to seriously injured people in rural areas

WILG is hosting A Constitutional Challenges Summit on April 18th in Washington D.C. I won’t be able to travel to the event, but this post and my next post are my contribution to this important disucssion.

Two seemingly obscure court decisions (sorry for the cliché) involving payment of air ambulance bills in workers compensation cases raise big questions about the role of federal law in traditionally state-based workers compensation laws.

Thomas Robinson, editor of the leading treatise on workers’ compensation laws, summarized Texas state court and 10th Circuit Court of Appeals decisions  invalidating Texas and Wyoming laws that held that air ambulance bills for workers hurt on the job should be paid under workers’ compensation fee schedules. Both courts held that since air taxis are regulated by the Federal Aviation Act, that federal law would preempt state workers’ compensation acts.

Many lawyers who specialize in workers’ compensation are skeptical of federal intervention in workers compensation. In the world of workers’ compensation so-called “federalization” is often viewed negatively. Robinson worried that the “wall” against federal intervention in the workers’ compensation system was not strong enough and wondered if there were any barriers to federal intervention in state-based workers’ compensation laws.

Anybody who reads this blog on a regular basis knows that I am a skeptic of those are who skeptical of federal intervention in the workers’ compensation system. My fundamental gripe with the “state’s rights” crowd is that workers compensation laws were enacted in the 1910s when a very pro-business Supreme Court used a narrow definition of interstate commerce to limit the power of the federal government to regulate the workplace. Workers’ compensation laws had to be enacted under state law through their 10th Amendment police powers.  But the power of Congress to regulate interstate commerce was expanded by the Supreme Court in the New Deal era which allowed the federal government to mandate matters such as wages and workplace safety.

So when Robinson asked if there were any barriers to federal intervention in state workers’ compensation laws, my first reaction was to say no. But the more I looked at the issue, the more I question that reaction.

Robinson described the wall against federal intervention in state workers’ compensation laws as the McCarran-Ferguson Act.  McCarran-Ferguson, passed in 1945, gives the states to regulate “the business of insurance” “without interference with from federal law unless federal law specifically provides otherwise. Since workers’ compensation is at heart an insurance scheme, McCarran-Ferguson provides a barrier against federalization of workers’ compensation.

McCarran-Ferguson was enacted primarily in response to Untied States v. South-Eastern Underwriters a 1944 decision which held that insurance contracts were interstate commerce. Southeastern Underwriters overturned roughly 80 years of precedent that insurance contracts were not interstate commerce because insurance contracts, even if involving interstate parties, were not actually commerce.

The issue of what constitutes commerce figured prominently in NFIB v. Sebelius, the 2012 case upholding the individual mandate in the Affordable Care Act. In that case, the individual mandate was upheld as constitutional based on the federal power to tax rather than the power to regulate interstate commerce. Much of the same reasoning found in the dissenting opinion in Southeastern Underwriters about what constitutes commerce was found in Chief Justice Roberts’ analysis of the commerce clause in NFIB v. Sebelius. According to Roberts, requiring a person to buy health insurance or any product did not constitute commerce, so Congress cannot enact such a requirement under its power to regulate interstate commerce.  Justice Roberts expressly rejected a cost-shifting argument made in support of the individual mandate being constitutional under the commerce clause.  Supporters of federal minimum standards for state workers’ compensation laws, like me, argue that deficient state laws shift the costs of work injures onto the taxpayers and/or the worker themselves

But under the reasoning in NFIB v. Sebelius, a cost-shifting argument in favor federal standards in workers compensation could run into tough questioning from the Roberts court if power to enact those standards is based on the commerce clause. In view of NFIB v. Sebelius, I believe the air ambulance cases are narrow exceptions to the federal deference to state law in matters of workers compensation.

But I believe state laws regarding workers compensation are subject to indirect federalization through constitutionally-favored tax legislation. In the recently passed tax bill, workers were given incentives to declare themselves independent contractors. As evidenced by NFIB v. Sebelius, the Roberts court seems more inclined to find laws constitutional under taxing authority than the interstate commerce clause. 

Gig economy companies and their lobbyists are pushing for legislation like the NEW GIG Ac t (10) which allows companies to use the tax code to classify workers as contractors without running into legal trouble. For the foreseeable future, I believe the so-called federalization of workers’ compensation will take place in fights about tax law.  The sad fact for employee advocates is that laws enacted under the taxing authority of the federal government are likely to be upheld as constitutional. Unfortunately, any worker-friendly reforms made at a federal level would face a skeptical audience with the Roberts court if they were enacted through the interstate commerce clause.

The offices of Rehm, Bennett & Moore, 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 , .

Experience Of New Virginia Legislator Points To Difficulty Of Multi-State Claims For Injured Workers

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Democrat Lee Carter, a democratic socialist, won an election to represent Virginia’s 50th District in the state’s House of Delegates.

Lee Carter took a bad experience with a work injury and turned it into motivation to win election to the Virginia legislature last November. But the nature of Carter’s bad experience with his work injury shows why electing true worker advocates to state legislatures may not be enough to protect injured workers.

Carter was a Virginia resident who was injured in Illinois working for a Georgia company. Carter attempted to bring his claim in Virginia but he was unable to do so because of lack of jurisdiction. Tennessee lawyer Denty Cheatham pointed out on the WILG listserv that Carter’s difficulty in bringing a claim was why national standards are needed for workers compensation.

So-called federalization is controversial in the world of workers’ compensation. Workers’ compensation is a creature of state law by what amounts to a fluke of legal history. When workers compensation laws were passed in the 1910s, the Supreme Court held that regulation of workplace safety was outside of the federal government’s ability to regulate interstate commerce but was within the so-called police power of the states.

Two decades later during the New Deal era, the Supreme Court expanded the definition of interstate commerce in the 1930s which allowed Congress to enact laws impacting the workplace such as the Fair Labor Standards Act, Title VII and the Occupational Safety and Health Act (OSHA).

OSHA was implemented in the 1970s as concerns about the adequacy of state-based workers compensation systems arose from organized labor and the civil rights movement. Part of the OSHA Act was a National Commission that called for minimum standards for workers compensation claims. Part of having standardized state laws would mean that state laws would be more uniform and multi-state claims would be easier to navigate for injured workers.

Our firm is part of WILG which is a national organization of workers’ compensation lawyers. Multi-state or multi-jurisdictional claims are probably one of the most discussed topic on the WILG listserv. Mainly lawyers discuss which state’s have the best laws for a particular case. In some circumstances workers can also bring claims in and collect benefits in multiple states. The current system works for knowledgeable lawyers, but it can fail injured workers who may not even be able to bring claim because of questions over jurisdiction.

Multi-state claims can also subvert democratic rule. A worker has some input over workers compensation laws in the state where he or she lives and votes through their respective state legislatures. A worker who is forced to bring a claim in another state does not have that influence unless they happen to be among the 6 percent of private sector employees represented by a union. But even then, it may be burdensome to bring a claim in another state.

But workers have a say over national laws through their Congressional representatives. Minimum standards and some uniformity in state workers’ compensation laws would give injured workers more say in the types of benefits they would receive if they were hurt out of their home state or hurt for an out of state employer. Minimum standards legislation would also draw more national attention to the short coming of various state workers’ compensation laws. Renewed pushes for federal standards for workers’ compensation happened in the early Obama administration and towards the end of the Obama administration. National standards for workers’ compensation legislation will probably have to wait for a change in the partisan makeup of the two elected branches of the federal government.

The offices of Rehm, Bennett & Moore, 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 Government, Legislation, Workers' Compensation, Workplace Injury and tagged , , , , , .

Workers Compensation for the Work Camper

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The Washington Post ran a feature story about “Work Campers” – senior citizens who live in campers and travel around for temporary jobs. The story noted that many, if not most, work campers were forced into the lifestyle by inadequate retirement savings and Social Security retirement benefits that have lost 30 percent of their purchasing power since 2000. The story also noted that the number of senior citizens working has increased from 4 million to 9 million during that same time period.

The idea of a growing number of senior citizens essentially acting as migrant laborers strikes many as odd and even dystopian. But work campers will present interesting challenges to the workers compensation system.  Though some studies show that older workers are less likely to get hurt on the job, this finding is attributed to older workers having more experience on the job. Since work campers tend to hop from temporary job to temporary job, their chances of injury could increase as temporary workers are more likely to get hurt.

This growing development in the workforce raises many issues for work campers who are hurt on the job because workers compensation laws are state specific so benefits and eligibility for benefits vary from state to state.

Here are some questions that will face work campers when they are injured on the job.

Which states and jurisdictions can you collect benefits?

Employees may be eligible to claim benefits in the state where they are injured, their state of permanent residence, the state their employer is based or the state they were hired. Employees may also be able to claim benefits in multiple states. Employees may also be able to bring claims under the Jones Act or Longshore Act if they were hurt on a ship or a navigable body of water. It helps to get advice from a qualified workers’ compensation lawyer as the decision as to where an employee should claim benefits should be driven by where they have the best chances of recovery.

Which states limit permanent benefits for older workers?

Iowa recently limited workers over the age of 67 from receiving permanent disability benefits for more than 150 weeks. A work camper who was covered under Iowa law and seriously injured could only receive 2 ½ years of benefits.

What is the law on pre-existing conditions?

Many elderly workers have preexisting conditions. In some states those preexisting conditions may impair the ability of an injured work camper to collect benefits. In Missouri employees need to show an injury is a “prevailing factor” in the disability whereas in Nebraska employees merely show the work injury was a “contributing factor” to the disability. In other words, it would be more difficult for a work camper to collect benefits in Missouri for the aggravation of an old injury than it would be in Nebraska.

How do you determine earnings?

Disability benefits are based on earnings or what is called average weekly wage.  The work campers profiled in the Washington Post were fairly low wage employees. However some work camping contracts include provisions for benefits like lodging that have a real monetary value. In some states, like Nebraska, those non-cash benefits can be included in the average weekly wage. Short term work assignments also present difficulties in determining average weekly wage because they might not accurately reflect an employee’s actual earning capacity. There could also be questions as to whether employment is seasonal or weather dependent which could also alter the average weekly wage.

Again, calculations of earnings can vary state by state, so work campers injured on the job should contact a member of WILG who specialize in workers compensation and regularly communicate with workers compensation specialists in other states.

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

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

Status of Worker’s Compensation in the United States

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WILG_logoLawyer Charlie Domer, from the Domer Law Offices in Milwaukee, originally wrote today’s blog post. This report from WILG (the Worker’s Injury Law & Advocacy Group) should be required reading for all who care about worker safety and workers’ compensation, as Domer writes below.

All of our firm’s lawyers are members of WILG, and Jon Rehm and I serve on the Board of Directors.

Here’s WILG’s mission statement: “Worker’s Injury Law & Advocacy Group is the national non-profit membership organization dedicated to representing the interests of millions of workers and their families who, each year, suffer the consequences of workplace injuries and illnesses. The group acts principally to assist attorneys and non-profit groups in advocating the rights of injured workers through education, communication, research, and information gathering.”

After reading the report, contact an experienced workers’ compensation lawyer with your questions or concerns about specifics.

For all those concerned about worker’s compensation in our country—which really is all citizens—take a look at this important report on the current status of worker’s compensation systems.  The report, from the Worker’s Injury Law & Advocacy Group (WILG) highlights the scary place where some legislators and big businesses want to take worker’s compensation.

Click here for the report. (PDF)

The offices of Rehm, Bennett & Moore, 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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Examining the Reality of Workers’ Memorial Day

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We write this blog post to bring attention to an article that was a big dose of perspective about all the recent Workers’ Memorial Day celebrations. The official day is April 28 for Workers’ Memorial Day, and many groups spend a lot of effort in organizing events, discussing safety, and holding memorials. Unfortunately, as the article points out, those efforts don’t always translate into safer workplaces and fewer fatalities.

What Karen C. Yotis and Robin E. Kobayashi did was talk to “a few thought leaders in the workplace safety arena” to get the reality of the situation by asking the question: “Has worker safety improved at all during the past year?” The experts they spoke with included “Tammy Miser, Founder/Executive Director of United Support & Memorial For Workplace Fatalities; Kim Bobo, Executive Director for Interfaith Worker Justice; Charles R. ‘Chuck’ Davoli, 2014 President of Workers’ Injury Law & Advocacy Group and a Louisiana Workers Advocate; and Rebecca Shafer, attorney, author, and a workers’ compensation/risk management maven who has spent her professional life advocating for safe workplaces.”

There is often a disconnect between thought and reflection and then taking action to change a situation. The blog post treads into the waters of holding people and businesses accountable and also taking action that leads to long-term change in the form of safer work environments.

Attorneys Rod and Jon Rehm are members of WILG’s Board of Directors, which is currently led by Mr. Davoli, and the other attorneys at Rehm, Bennett & Moore are all members of WILG because of the group’s efforts towards both accountability for businesses and safety for workers.

While we urge you to read the entire blog post that’s linked to in the first paragraph, here are a couple of thought-provoking highlights.

First, it is striking that a “cost containment expert” like Ms. Shafer describes how businesses must focus on safety. Although it’s at the end of the linked article, Ms. Shafer’s commentary is excellent – the article says that she “speaks out so passionately on the employer’s obligation to keep an unrelenting focus on safety.” Here’s a partial quote that she gave to the article: “ … the bottom line is that each employer needs to make safety the #1 priority. … Until worker safety is TOP priority, a company will continue to have very little success in achieving a balanced workers’ compensation insurance program.” She writes about making safety a higher priority than profitability, but realistically, companies would be much more profitable if they were also much safer.

Finally, Mr. Davoli shared a list of “nine safety elements” for “the construction and building trades” that a Workplace Safety Task Force created in Louisiana with WILG’s help.

Here’s that excellent list:

“1. A designated safety budget as part of the normal operating budget.

 2. A formal safety committee that meets on a regular schedule.

 3. An employer that pays employees for the hours they spend attending voluntary off-duty safety training sessions.

 4. A formal personal protective equipment training program.

 5. Written and formal safety goals that are updated periodically.

 6. Safety training for subcontractors.

 7. Detailed safety reports to employees on a regular basis.

 8. Regularly scheduled safety training programs for existing employees.

 9. A disciplinary procedure for employees who commit unsafe acts.”

The reflection portion of Workers’ Memorial Day must turn to action. The reality is that until businesses buy into and change their work culture to be safe, there will always be a need to remember those who were killed at work.

Thanks to Ms. Yotis and Ms. Kobayashi for writing such an excellent piece.

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

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

Is Worker’s Comp Profitable Because Disabled Workers Don’t Get Benefits?

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My friend Tom Domer of The Domer Law Firm in Milwaukee, who happens to be one of the most knowledgeable workers’ compensation lawyers I know, wrote a great blog post explaining why workers’ compensation insurance companies profit mightily and injured workers struggle. Workers need to avoid the kind of thinking that leaves them with empty pockets and insurance companies with growing bank accounts. Injured workers should speak with qualified experienced lawyers before deciding whether to pursue workers’ compensation benefits or to abandon a claim if they are being denied.

I recently wrote an article in the national magazine for the Worker’s Injury Law Advocacy Group (WILG), the Worker’s First Watch, Fall 2013 reviewing the worker’s compensation resources research report indicating that the worker’s compensation industry is extremely profitable.  I began representing injured workers in 1976.  It seems every year since then worker’s compensation insurance carriers have complained they are not making profits and the culprit responsible is increased benefits paid to workers.  In fact, over the last 20 years the insurance industry has been profitable in 16 of 19 years and broke even in one year.  Several factors account for this profitability, including worker’s compensation insurance carriers successfully pursuing deregulation and “reform” measures to restrict eligibility. 

The net result of increasingly restrictive rules for compensability in many State worker’s compensation systems as a result of “reform” resulted in many workers with disabilities caused by work who did not receive worker’s compensation benefits.

The general trend since the early 1990s has been to restrict coverage through State statutory and administrative “reform”.  Many workers face lengthy litigation and frustration.  More restrictive regulations may preclude claims where the worker lacks “objective” medical evidence for his injury, or is unable to medically document persistent pain, or has a disease resulting from multiple causation that cannot be distinguished from workplace disease, or has job stress related disorders.  One significant problem is that many injured workers fail to file for benefits.  (For those of us in the trenches daily, these pose obstacles to compensability.)  Among the many reasons for failure to file are:

  • Ignorance of worker’s compensation and eligibility.
  • Ignorance of the work-relatedness of the condition.  (Many workers know they suffer an impairment but do not know the health condition is caused by work.)
  • Reimbursement for medical care or Short Term Disability benefits available.  (Many workers use Short Term Disability or group medical insurance rather than worker’s comp.)
  • Belief that the injury is lacking in sufficient severity.
  • Many workers fear job loss or other forms of retaliation, who do not want to report a condition as work-related.
  • Workers do not want to be perceived as complainers or careless.
  • Deciding not to file based on the negative experience of co-workers.
  • Fear of the stigma associated with being a worker’s compensation claimant.  (Much of this stems from the intense focus on fraud perpetrated by the insurance industry, resulting in increased levels of stigmatization, decreasing the likelihood injured workers will file for benefits.)
  • Pressure from co-workers on safety incentive programs.  (These programs, sometimes called “Safety Bingo” create incentives not to report.)

Those of us who have hearings daily that involve the non-reporting of an injury, or significant time delay between the occurrence of an injury and the reporting of an injury, can refer to the above list for some ammunition on the “non-filing” or “late filing” issues.

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

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