Tag Archives: Workers Compensation

Nebraska comp. court rule changes could help physician-owned hospitals

Posted on by

Lincoln Surgical Hospital (above) could benefit from recent changes to NWCC rules on doctor referral

While Judges debated and rejected changes to rules about expert testimony in the Nebraska Workers’ Compensation Court, there was little discussion about a change to court rules allowing for a controversial practice among doctors.

At last month’s public meeting of the Nebraska Workers’ Compensation court, the court unanimously passed a change to NWCC Rule 50 that allowed doctors to refer to facilities where the doctors have an ownership interest.

 Supporters of so-called “physician-owned” hospitals many of which are surgical hospitals, argue that that these facilities provide services at a much lower costs than hospitals. A recent article in The Wall Street Journal detailed how hospital systems can inflate the costs of medical care by limiting referrals of primary care doctors employed by them.  Medical costs comprise roughly 60 percent of total workers’ compensation costs. Not surprisingly insurers like doctor-owned hospitals because of the lower costs.

But physician-owned hospitals can’t take Medicare or Medicaid due to changes brought about by the ACA. Hospitals argue that physician owned hospitals shift the cost of poorer and unhealthier patients on to them which is why the ACA disfavored physician-owned hospitals.

Essentially the change to NWCC Rule 50 was a victory for insurers and doctors over hospitals. Since the early 1980s medical expenses have taken up an increasing share of workers’ compensation expenses — now comprising 60 percent of the total expense. If the change to Rule 50 does lead to lower medical costs for the same level of service, then it should be helpful to injured workers because there will be less pressure to reduce benefit levels through legislation.

These legislatively mandated reductions in benefits usually mean worker receiving less compensation for permanent and temporary disability. Reductions in disability for compensation for injured workers has recently been cloaked in legislation adopting the American Medical Association Guide to Permanent Impairment, 6th Edition which has been the subject of many state-level constiutional challenges  from plaintiff’s lawyers.

 

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

What’s new for 2019 in Nebraska workers compensation?

Posted on by

The beginning of the year usually sees rule and benefit changes in the Nebraska Workers’ Compensation Court. 2019 will be no different. The maximum rate for disability benefits will increase to $855 to $831. Mileage reimbursement for medical visits and vocational rehabilitation will increase to $.58 per mile from $.545 per mile.

While annual increases in the maximum benefit rate are routine in Nebraska, it is not routine in all states. The annual increase in the maximum benefit rate ensures that compensation stays adequate from both a practical and constitutional perspective.

The minimum benefit remains unchanged at $49.00 per week. That amount has not changed since 1973. That  low amount can particularly harm a worker who suffers a serious injury on a second job or part-time job — like a holiday job — if the work injury keeps them from doing a full-time job.

The mileage rate increase might also seem humdrum, but it is common for injured workers in Nebraska to travel relatively long distances to seek care from specialists. An increase in mileage reimbursement of $.035 per mile means another $7 for injured worker who makes a 200-mile roundtrip for medical treatment which is not uncommon in Nebraska.

The Nebraska Workers’ Compensation Court also approved various procedural changes at their meeting on December 20th.

Rule 2 Rule 2 regulates filing in the Nebraska Workers’ Compensation Court. Changes to the filing rules mandate the use of registration for the E-File system through Nebraska.gov. Additionally, the court will formally allow pleadings filed by 11:59:59 p.m. central time to be deemed to be filed that day rather than waiting for formal business hours to get a document file stamped. Appeals can now also be filed electronically.

Rule 47 – The change to Rule 47 provides that more detailed information about third-party cases be provided to the court in settlements that require court approval. The court doesn’t have jurisdiction to determine third-party liability but it does have some interest in repayment or subrogation interests under the theory that subrogation interests ensure that medical providers are adequately paid. Case law also provides that protection of a employer/insurers subrogation interest effectuates the beneficent purpose of the act.

Rule 50 – The court ended its prohibition of doctors referring patients to clinics where they have an ownership interest. This rule changes allows for doctors to refer to physican-owned specialty hospitals. These hospitals can perfrom procedures at a lower cost, but the ACA prohibited such facilites from taking Medicare and Medicaid. 

The court also adopted a new fee schedule dictating how providers are paid for treating work injuries. You can read about here as to why that is significant here. The court also rejected a change to NWCC Rule 10 prompted by a recent Nebraska Supreme Court decision that you can read about here.

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

Will there be a fix for legislation like the Protz fix?

Posted on by

Doing the math: How the AMA 6th costs workers with a wrist injury

In a dubious triumph for bi-partisanship, Pennsylvania reduced workers’ compensation benefits for many if not most workers with permanent injuries in 2018. 2018 was a bad year legally for workers rights and the so-called Protz fix was emblematic of the year for a few reasons.

But 2018 also showed some glimmers of hope for workers such that there may be fixes for legislation like the Protz fix.

Legislatures take, courts make and vice versa

Pennsylvania Governor Tom Wolf signed HR 1840 which legislatively overturned the Protz decision which held Pennsylvania’s language using the “most recent” edition of the AMA Guides to Permanent Impairment to determine compensation for permanent injuries was unconstitutional. Pennsylvania “fixed” the Protz decision by expressly adopting the AMA 6th.

The AMA 6th has been criticized, correctly in my view, because it is bases impairment on inability to do general life activities versus working activities. A recent study confirms this suspicion long held by plaintiff’s attorneys.  From a practical point of view, the AMA 6th usually leads to an injured worker receiving less compensation than they would under previous editions of AMA impairment “cookbook.”

When I started practicing in 2005 a worker who had a carpal tunnel surgery usually had a 5 percent impairment under the AMA 5th. Now, that same injury is typically a 1 percent impairment under the AMA 6th.

For a worker in Nebraska earning $15 per hour, the difference between the two impairments on a wrist injury amounts to $2800. After the Protz “fix” was passed, the Pennsylvania Compensation Rating Bureau filed for a 14.74 decrease in workers’ compensation insurance rates.

My big takeaway from the Protz decision and the subsequent “fix” is just how much work needs to be done politically to make sure injured workers are fairly compensated for their injuries. The Protz “fix” passed easily. Plaintiff’s lawyers resorted to constitutional challenges because many state legislatures have weakened workers’ compensation laws. Protz shows that appellate victories can be fleeting because legislatures can easily overturn those decisions.

Does the plaintiff’s bar need to worry about “constitutional challenges” of their own?

2018 also saw some disturbing court decision that could impact workers’ compensation. In SEC  v. Lucia the United States Supreme Court held an investment adviser convicted of securities fraud by the Securities and Exchange Commission (SEC) was unconstitutionally convicted because the Administrative Law Judge (ALJs) who tried his case was hired in violation of the appointments clause. Iowa is one of many states workers’ compensation cases are heard by Administrative Law Judges that are hired as civil servants rather than appointed by the Executive. SEC v. Lucia could help employers/insurers to make persuasive appointments clause arguments under state constitutions that such arrangements are unconstitutional.

Protz relied on an argument about unconstitutional delegation of legislative powers which is fundamentally a conservative argument which was used to strike down New Deal legislation. Workers’ compensation reforms have also been challenged on a contracts clause basis  which is another conservative argument used against pro-workers legislatsion in the past. Maybe these arguments appeal to conservative pro-business types, but they could be used against advocates for injured workers and their clients.

But there are some reasons for hope that emerged in 2018.

2018: Reasons for hope for injured workers

But 2018 did see gains for Democrats in state  and federal elections. To be blunt, pro-worker is often a code for “Democrat”. While there are some exceptions, most conservatives are terrible for workers. Democrats generally oppose extreme conservatives, so they serve some purpose. But in Pennsylvania the so-called Protz fix was signed by a Democratic governor and supported by Democratic state legislators. In my experience, many Democratic elected officials aren’t going to support workers unless they get prompted, but they are usually lack the same ardor to gut workers’ rights.

More hope can be found outside the realm of electoral politics. In 2018 citizens started taking direct action. Some of the biggest gains made for workers in recent memory happened during teachers’ strikes in Arizona, Oklahoma and West Virginia this year. The chattering classes asked “Why don’t these striking teachers just vote for the right people?” Well, they tried and it didn’t work. Rank and file teachers in Arizona, Oklahoma and West Virginia found a better way to advocate for themselves.

The teachers strikes took place in the wake of the Janus decision that dealt a blow to public sector unions. Workers’ rights were also dealt a blow by the Epic decision that, among other things, allowed employers the right not to join class and collective action cases through so-called arbitration agreements. Workers for Chipotle and Uber have come up with the ingenious hack of filing in mass for individual arbitrations. 

I see the challenge for 2019 for lawyers for injured workers’ is finding away for this newly emerging energy and creativity from workers in support of their own rights  focused on improving workers’ compensation. I’ve written before about state senators Dan Quick of Nebraska and Lee Carter of Virginia who used their bad experiences with workers’ compensation to try to improve the workers’ compensation laws in their state.

So while lawyers for injured workers may be on the defensive in the legislative and judicial arena, we may have newfound allies that could help us reverse the steady erosions of workers’ compensation 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 Constitutional law, Nebraska, Workers' Compensation and tagged , , , , , , .

Happy Holidays!

Posted on by

Happy Holidays from the attorneys at Rehm Bennett Moore Rehm and Ockander.

This holiday season we are grateful for….

The clients who have been physically, financially and or emotionally harmed by others who trust us to represent them.

The family members of our clients who help us represent our clients.

Our staff who helps us represent our clients and put up with us on a day to day basis.

Our family members who put up with us and support us.

The doctors who treat our clients and cooperate in court proceedings along with their nurses and support staff.

Court staff, court reporters, interpreters and everyone else behind the scenes in the legal system.

Opposing counsel and their support staff for their professionalism in litigation.

Judges who provide prompt and well-reasoned decisions…even if we as attorneys don’t always agree with the decisions.

 

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 Happy Holidays, Nebraska, Workers Compensation and tagged , , .

Nebraska work comp court rejects rule change on P.A. reports

Posted on by

The Nebraska Workers Compensation Court isn’t in the state capitol anymore. But this is a good picture.

By a 5-2 vote, the judges of the Nebraska Workers’ Compensation Court rejected a proposed change to NWCC Rule 10 that allows physician assistants, nurse practitioners and neuropsychologists to testify by written report in the Nebraska Workers’ Compensation Court.

The rule change was proposed in response to the recent Bower decision  that held that P.A.s could not submit written reports in the court because they were not mentioned in the text of NWCC Rule 10. Rule 10 designates which experts may testify by written report in the court.

I’ve written here and here that I believe that including P.A.s within NWCC Rule 10 benefits uninsured and rural injured workers who may not have access to care besides a P.A. or nurse practitioner. P.A.s also work closely with specialists and often handle matters like light or alternate duty restrictions. Allowing P.As to testify by Rule 10 report would clear up any amhguity over P.A. assigned temporary duty restrictions. Furthermore allowing P.A. reports under Rule 10 may decrease litigation costs for workers and employers/insurers.

However a majority of judges of the Nebraska Workers Compensation disagreed. The majority seemed to agree that P.A. reports were admissible into evidence, but could not be replied upon as expert testimony. That interpreation seemed to vary from the opinion that Bower excluded P.A. reports from evidence.

Under Neb. Rev. Stat. 48-163, the Nebraska Workers Compensation Court has the power to prescribe its own rules of evidence and procedure.

Also at Thursday’s hearing the court adopted a fee schedule for injuries covered under the Nebraska Workers Compensation Act for 2019. The fee schedule determines how much a medical provider can be paid for services under the act. The fee schedule means that the reasonableness of medical charges is generally not litigated in workers’ compensation cases in Nebraska. This lessens litigation and encourages medical providers to accept workers’ compensation patients.  Other states,  notably New Jersey, do not fee schedule medical charges which leads to more complicated workers’ compensation claims.

The court also voted in favor of rule changes about filing, lump sum settlements and doctor choice.

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 Nebraska, Workers Compensation and tagged , .

Nebraska considers rule change to allow P.A. reports in workers compensation cases

Posted on by

On Thursday, the Nebraska Workers’ Compensation Court is considering amending NWCC Rule 10 to allow physician assistants or (P.A.), nurse practitioners and neuropsychologists to testify by written report.

The proposed rule change appears to have come in response to the recent Bower v. Eaton  decision where the Nebraska Supreme Court held that P.A.s could not testify by written report in the Nebraska Workers’ Compensation Court.

I wrote in October that I believe the Bower decision harms workers in rural areas whose only access to medical care is often a P.A. The decision also harms workers without health insurance whose only treatment for a work injury might be treating with a P.A. at an urgent care clinic. If an employer denies compensability, the only medical evidence that employee may have would be a report from a P.A.

Most lawyers “fix” P.A. reports by having the supervising doctor sign the report. I’ve had P.A.s take offense at that request. I’ve also had defense lawyers attack medical opinions on hearsay grounds by getting a medical doctor to admit that the P.A. is the one with first-hand knowledge about the injured worker.

Under the Bower decision, lawyers are stuck with two options if a P.A report is the sole source of expert opinion from a treating provider: 1) Call the P.A. live as a witness in the same manner as in a civil trial or 2) retain an examiner.

The prohibition of P.A. testimony by written report can also complicate litigation for employers. Often surgeons will have P.A.s do post-surgical follow up visits. In many instances the P.A. will issue return to work notes for light or alternate duty. But since a P.A. isn’t a recognized expert under NWCC Rule 10, there would be some question over whether a P.A. had the right to issue return to work notes. This could weaken an employer’s case that they were accommodating a work injury.

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 Nebraska, Workers Compensation and tagged , .

Fee Schedules: A defense of bureaucracy in workers compensation

Posted on by

Former New Jersey Governor Chris Christie

Lawyers on “both sides of the v.” in Nebraska like to grumble about rules and regulations imposed by the workers’ compensation court.

But ideally rules make the workers’ compensation claims process easier. A good example of the benefit of some bureaucracy in workers’ compensation would be the fee schedule for medical bills required by statute and developed by the court on an annual basis. In simple terms, the fee schedule determines what an employer/insurer is required to pay for medical services in a workers’ compensation claim. The fee schedule eliminates disputes over what constitutes a  fair and reasonable charges in a Nebraska workers compensation case and in many  other states.

Contrast this with New Jersey, a state that doesn’t have a fee schedule in workers’ compensation. In New Jersey courts must determine fair and reasonable charge on a case by case basis. In fact, thanks to a reform put in place by former Governor New Jersey Governor Chris Christie, nearly 20 percent of workers’ compensation cases filed in New Jersey involve disputes between medical providers and insurers/claims administrators over medical charges.

One leading New Jersey workers’ compensation defense firm predicted, almost gleefully, that soon 1/3rd of workers’ compensation cases in the Garden State will involve cases between medical providers and insurers/claims administrators over medical charge. I hate to sound cynical, but as work injuries continue to decline, workers’ compensation defense lawyers can grind billable hours in what amount to commercial disputes between doctors and insurance companies .

Putting aside jibes at the defense bar, a lack of a fee schedule means more time and expense proving up what is a fair and reasonable charge versus spending that time and expense on proving compensability and nature and extent of disability. Plaintiffs who aren’t being paid benefits or receiving medical care have to wait for a court date while doctors and insurers spend court time arguing whether an insurer has to pay $.73 on the dollar for a procedure or $.87 on the dollar for a procedure. (By the way the decision in that case was 21 pages single space in a small font.)

Uncertainty over reimbursement for workers’ compensation services would also discourage medical providers for treating workers’ compensation patients. In my experience a mutually agreed upon fee schedule for medical charges for workers’ compensation claims greatly simplifies workers’ compensation cases. An administrative solution on medical costs in workers’ compensation is much better than litigating the issue on a case by case basis.

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 fee schedule, Nebraska, Workers Compensation and tagged , , .