Tag Archives: Workers Compensation

OSHA reverses course on COVID-19 reporting

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In what amounts to a reversal of policy, the Occupational Health and Safety Administration (OSHA) is requiring most employers to record possible COVID-19 exposure on the job. OSHA’s reversal will make it easier for workers to prove workers’ compensation claims for COVID-19 exposure.

Per OSHA requirements, employers must conduct a basic investigation about the potential causes of COVID-19 exposure. Employers must give employees any OSHA reports, upon request, about their work-related injury or illness.  Employees should also be able to obtain OSHA reports through discovery in a workers’ compensation case or from a union representative.

OSHA’s reversal increases the chances that state workers’ compensation agencies and courts will report better information about COVID-19 exposure. As I wrote in April, employers tend to blur state and federal reporting standards.

OSHA’s reversal on COVID-19 reporting coincides with the AFL-CIO suing the agency to impose stricter standards for COVID-19. In addition to the AFL-CIO suit, a workers’ group sued meatpackers over the public health effects of COVID-19 outbreaks at packinghouses. The reversal of policy also coincides with a group of state attorney generals suing Amazon over workplace COVID-19 data.

More federalization of workers’ compensation

But while OSHA’s actions place a small thumb on the scale for workers’ rights, the specter of federal immunity for COVID-19 workers’ compensation claims lingers. The Senate has yet to take up the latest COVID-19 bailout package passed by the House of Representatives.

But there may be some somewhat positive federal legislation impacting state workers’ compensation law. Rep. Joe Kennedy III (D. Mass) introduced a special fund that would compensate essential workers and their families effected by COVID-19 through a federal program. This legislation is modeled on a federal fund for workers killed and injured due to the September 11, 2001 attacks.

Another bit of good news is that the Senate passed a presumption for death benefits for first responders killed in the line of duty duty related to COVID-19. In my view, general federal immunity for workers’ compensation can co-exist with a presumption of compensability for first responders. I, and other workers’ compensation bloggers/commentators have written frequently about a two-tier workers compensation system. Legislators tend to favor first responders like police and firefighters. This political favor leads to the benefit of presumptions of coverage for certain injuries and protections for ‘mental-mental” injuries unavailable to less favored workers.

The rise of the essential worker?

Workers like retail workers belong to the second or less favored tier — or at least they did before COVID-19. COVID-19 has introduced the concept of the “essential worker” into mainstream discourse. Many states have looked to include essential workers in enhanced workers’ compensation laws for workers exposed to COVID-19. I’ve been writing about and advocating for these workers for years. But I guess it takes a public health crisis to recognize the importance of retail, warehousing, delivery and meatpacking workers.

Legislative changes in Nebraska?

Last week, Nebraska announced it will re-start our Legislature on July 20th. The Unicameral generally adheres strictly to unwritten norms about deference to committees. Generally, a bill about expanding workers’ compensation benefits would be discussed in the Business and Labor Committee. But the COVID-19 crisis is a highly unusual situation. It will be interesting to see if there are any COVID-19 related changes to workers’ compensation laws made when the legislature restarts.

COVID-19 related changes to workers’ compensation may have to wait until next year in Nebraska. Of course there could be a different legislature depending on the outcome of November’s elections. This is all the more reason to research, vote for and support legislative candidates who support expanding workers’ compensation.

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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Local reporting of packinghouse COVID-19 cases nixed. Why workers’ comp. reporting may not fill the information gap

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The JBS Swift plant in Grand Island, Neb. Governor Pete Ricketts refused a request from local health officials to shut down the plant (Photo by KTIC Radio)

News Channel Nebraska reported last week the State of Nebraska would no longer report COVID-19 exposures from individual meatpacking plants.

Five Nebraska counties with major meatpacking plants – Dakota, Dawson, Colfax, Hall and Saline, ranked in the top 31 of highest per capita exposure to COVID-19, the New York Times reported last Thursday.

Nebraska Governor Pete Ricketts cited confidentiality concerns as the reason for the order.  But, Ricketts decision seemed geared towards deflecting widespread criticism of meatpacking houses for their role in spreading COVID-19. Pro Publica reported last week that Ricketts refused a request from public health officials in Grand Island to shut down a JBS Swift plant over COVID-19 concerns.

Workers’ comp. and COVID-19 exposure reporting

But while public official will no longer report COVID-19 exposure by meatpacking house, those plants are still required to report possible COVID-19 exposures to the Nebraska Workers’ Compensation Court. Those so-called First Reports of Injury are public record. But those records may not be accurate for two reasons.

First, many companies like to under-report work injuries. This practice pre-dates the COVID-19 pandemic. Employers under-report work injuries as a a a way to suppress claims. In Nebraska, the penalty for claims suppression is minor.

Secondly, OSHA guidance appears to exempt meatpackers from having to log COVID-19 exposure as an occupational injury. Standards for logging an injury for OSHA and reporting it to the Nebraska Workers’ Compensation Court tend to blur. Because of the guidance from OSHA, I suspect companies will under-report work injuries to state workers’ compensation courts.

Workplace safety and public health

The prevalance of COVID-19 in packinghouse towns has lead the general public to connect public health and workplace safety. The issue of workplace safety will need all the attention and public support it can garner. It appears as if corporate American wants to protect companies for COVID-19 exposure litigation. I believe this immunity could cover workers’ compensation.

A public nuisance suit filed against a Smithfield Foods plant in Missouri highlighted the link between workplace and public health. In the suit, community members sued Smithfield for the role it played in spreading COVID-19 in the area surrounding the plant.

But last week, a federal judge dismissed the case and ruled that any challenges to Smithfield safety practices would have to be filed with OSHA. In a blog post, University of Wyoming Law Professor Michael Duff called the decision a “mood point” indicating a potential “unreflective, anti-liability fervor enveloping the Great Reopening”.

I agree with Professor Duff. The unwillingness of courts to push the envelope for workers’ rights predates the COVID-19 pandemic. State and federal elections are coming up in six months. For once issues like workplace safety may be at the forefront of the discussion during campaign season.

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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Immunity by executive order probably isn’t constitutional, but beware of federal immunity for COVID-19 in workers’ compensation

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The Supreme Court held that Harry Truman overstepped his authority under the Defense Production Act in Youngstown Sheet and Tube

Last week, President Donald Trump signed an executive order shielding meatpacking firms like Tyson from legal liability over COVID-19. Trump’s order was based on the Defense Production Act (DPA).

Seeing the forest from the trees

From a legal perspective, the order is unenforceable. But getting bogged down in the legal weeds misses an important point about the order. The President of the United States has stated that packinghouses are immune from liability under the law for COVID-19 exposure. Regardless of the legal technicalities, that statement will likely discourage workers from filing workers’ compensation claims against meatpackers. I also fear managers of those plants will use the order as an excuse to shift the cost of COVID-19 exposures onto enhanced unemployment or short-term disability policies if workers file those claims.

Executive orders and Youngstown Sheet and Tube

Federal courts have held that the Defense Production Act does not immunize corporations from tort claims. Furthermore, in order to invoke the Defense Production Act, it would appear a company needs to be performing an actual government contract. The DPA fails to shield companies that are just producing their product for the private market.

But even if the DPA applies to meatpackers during the COVID-19 pandemic, the President has limited powers under the DPA. In 1952, President Harry Truman tried to use the DPA to force steel production during the Korean War. In Youngstown Sheet and Tube v. Sawyer, the Supreme Court held that since Congress had not specifically authorized such an order that Truman’s order was unconstitutional. Cheap meat during a pandemic is hardly the national security crisis that a shortage of steel during a major war.

Legally, this executive order immunizing packinghouses from COVID-19 claims should be filed in a recycling can. But corporate America is already planning to immunize itself from litigation from COVID-19 in a way that could be enforceable. I also believe these efforts will be aimed at workers’ compensation.

Federal legislation and COVID-19 immunity

The legal problems with Trump’s order on immunizing meatpacking plants under the DPA is the lack of Congressional authority. However, the Senate is proposing legislation that would prevent consumers and employees from suing corporations for exposure to COVID-19

Opponents of this legislation, point out, like I have earlier, that suits against businesses for COVID-19 are hard to prove. Opponents of the legislation also argue like I have earlier, that workers’ compensation already limits the liability of corporations for COVID-19 exposure from their employees.

My guess is that many readers of this blog possess some expertise in the workers’ compensation and workplace law general. I can imagine those readers saying something a long the lines of “Even if McConnell’s federal tort reform plan gets past Nancy Pelosi, there is no way it would apply to workers’ compensation. Workers’ compensation is a state issue.”

I believe this argument amounts to wishful thinking.

The 10th Amendment and workers’ compensation

Most workers compensation lawyers would argue that that two propositions would prevent Congress from giving federal immunity to employers under state workers’ compensation laws for COVID-19 exposure. One, workers’ compensation laws are enacted under 10th Amendment police powers. Workers’ compensation is also a law regulating insurance. State law generally governs insurance under the McCarran-Ferguson Act.

But federal and state courts have questioned the applicability of state workers’ compensation laws in regulating air ambulance charges. In technical legal jargon, state workers’ compensation laws have been mostly preempted by federal law on air ambulance charges because regulation of air ambulances is a matter of federal law. I believe the air ambulance charge cases could persuade courts that federal immunity for COVID-19 litigation would apply to workers’ compensation cases.

The 10th Amendment and state quarantine orders

The 10th Amendment is also the constitutional authority state governors and local officials rely upon for stay at home orders. President Trump has attacked some Governors for invoking that authority to impose quarantine or shelter in place order.

But more importantly, Attorney General William Barr has stated the Department of Justice will question state laws related to COVID-19 that unduly inhibit national commerce. Barr seems to be reviving the concept of the “dormant commerce clause”. Federal courts used the dormant commerce clause to overturn state laws regulating the workplace in the Lochner era.

I believe corporate America and their political allies will use federal legislation to undercut state workers’ compensation laws. Advocates fro injured workers should stay vigilant during this crisis.

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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Holding meatpackers accountable for COVID-19 cases with public nuisance litigation

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The JBS Swift plant in Grand Island, Neb. is at the center of a COVID-19 outbreak in that community. (Photo credit to KTIC Radio)

The New York Times reported on a public nuisance lawsuit filed against Smithfield Foods for COVID-19 exposure created by a pork processing plant in Milan, Missouri.

What’s novel about the public nuisance suit is that it sues Smithfield for its effect on the surrounding community, not its employees.

Meatpacking plants are a hotbed of COVID-19 exposure in small cities and rural areas across the country. In Nebraska, workers at JBS Swift in Grand Island and Tyson in Lexington have high rates of COVID-19 exposure. Reports trace nearly 40 percent of COVID-19 exposures in Grand Island to JBS.

The Missouri case against Smithfield describes how fast line speeds help spread COVID-19. Workers and their advocates have long expressed concerns about line speed in meat packing plants. Line-speed is related to widespread joint and muscle injuries in packinghouses.

In my job, I spend a fair amount of time in both Grand Island and Lexington litigating against JBS and Tyson. Because of that experience, I’ve watched in anger/horror as COVID-19 tears through these communities. In my view, the same indifference that Tyson and JBS show about joint and muscle injuries has been shown about COVID-19.

Skirting the exclusive remedy of workers’ compensation

Part of my anger about COVID-19 in Lexington and Grand Island goes to the difficulty of recovering workers’ compensation benefits for COVID-19. Workers’ compensation laws provide little deterrent for packinghouses to limit COVID-19 exposure. Even if an employee can prove on the job exposure, workers can collect limited benefits from workers’ compensation. Workers’ compensation benefits are limited because employees are supposed to collect them without regard to fault.

Limited in benefits in exchange for not proving fault is at the heart of the so-called grand bargain of workers’ compensation. Workers compensation benefits are generally the exclusive remedy employees have for workplace injury and illnesses.

But a public nuisance claim skirts the problems with workers’ compensation laws. A public nuisance claim sues the packinghouses not for how they treat their workers, but for how their treatment of their workers effects the surrounding community. Exclusive remedy means that the workers can only sue their employers for a workplace injury or illness under workers’ compensation. Workers can only collect limited benefits from workers’ compensation.

Public nuisance is a legal theory that the packinghouses know well. Environmental advocates successfully used the tactic against a Smithfield subsidiary in North Carolina. I hope worker safety advocates obtain a good outcome in the Missouri case. I hope these suits spread to plants in other states.

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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How COVID-19 complicates workers’ compensation claims

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

Delays in medical treatment

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

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

FMLA

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

Undermining doctor choice

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

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

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

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

Loss of health insurance in denied claims

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

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

Previous posts about coronavirus/COVID-19

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

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

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

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What workers should know about coronavirus and workers’ compensation

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

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

Reporting possible coronavirus exposures on the job

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

Protections against retaliation for reporting coronavirus exposure and treating for coronavirus

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

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

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

Why coronavirus exposure would be difficult workers’ compensation claims

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

In the course and scope of employment

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

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

Arising out of

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

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

Other hurdles of potential Coronavirus workers’ compensation claimants

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

Long-term solutions

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

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

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

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No, you don’t need to burn your PTO to get workers’ compensation benefits.

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Employees do not need to exhaust paid time off (PTO) to receive workers’ compensation benefits in Nebraska. Employers in Nebraska must carry workers’ compensation insurance. But in Nebraska, employers aren’t required to pay PTO. Workers compensation pays out benefits whether you have paid leave or whether you have health insurance.

If you injure yourself at work and someone in management or HR tells you that you need to exhaust your paid leave before you collect workers’ compensation benefits, one of three things might be happening.

1. Someone at your company is misinformed about workers’ compensation.

2. Your employer is misleading you about how workers’ compensation works.

3. Maybe you misunderstood what you were told.

So why do some people think you need to exhaust paid leave before you receive workers’ compensation?

Short-term disability and exhaustion of leave

Many short-term disability policies require that employees exhaust paid leave before claiming short-term disability. My wife was required to burn her paid time off in order claim short-term disability during her maternity leave. White collar employers tend to have more short-term disability claims than workers compensation claims. (They tend to shift work injuries on to short and long-term disability, but that’s another story.) So a white collar HR department that lacks knowledge of workers compensation may, wrongly, assume that injured workers need to exhaust paid leave before receiving workers’ compensation.

The stigma of workers’ compensation

Employers who believe that employees need to burn paid time off before workers’ compensation benefits, may also believe this is necessary because they believe it should be necessary. Burning your paid time off before receiving workers’ compensation would be the same as paying a deductible before health insurance pays. Employers who think PTO should serve as a workers’ compensation deductible may believe that workers’ compensation and workers’ compensation claimants are illegitimate. Forcing employees to burn PTO before receiving workers’ compensation is one way to “hold employees accountable.”

Paying a quasi-deductible to receive workers’ compensation benefits is the cornerstone of a portable benefits scheme dreamed up by Obamacare architect Jonathan Gruber. (Portable benefits are touted as a replacement for workers’ compensation —- particularly for gig economy workers. Bad portable plans shift the cost of work injuries onto injured workers.)

Misinformed or mislead: A distinction without a difference

I know some high-injury employers actively misinform employees about workers’ compensation. These employers may tell injured workers they need to use paid time off before they can collect workers’ compensation to discourage injured employees from taking time away from work. Employees may work through pain to avoid missing work and losing out on paid family leave and or paid vacation time.

Employee misunderstanding

Nebraska law requires a one-week delay period before an injured worker who is off work can collect temporary disability. If disability lasts longer than six weeks, the employer must pay that first week. . Some employees may take this statement to mean that they need to exhaust their paid leave or PTO to receive workers’ compensation. Many employees don’t want to take the chance of missing out on a week of pay Bluntly many employees may need to draw paid leave or PTO while they are waiting for workers’ compensation benefits to start.

Can you collect workers’ compensation for times you took PTO in Nebraska? Yes you can.

The Nebraska Court of Appeals ruled in Godsey v. Casey’s General Stores that an employee can collect temporary total disability for periods when they took PTO. The court reasoned that since paid leave was a benefit ready earned by the injured worker that an injured worker could collect workers compensation and PTO.

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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