Tag Archives: Workers Compensation

The problems posed by mandatory workplace stretching and exercise

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Many white-collar employees exercise at the beginning of the day before going to work. But many blue-collar workers are required by their employers to exercise or stretch at the beginning of their shifts.

In my view, required workplace stretching or exercises creates many issues in workers’ compensation and employment law.

Hurt while stretching at work

If a worker is injured while doing employer-mandated exercises, that injury would be covered by workers compensation. The deeper issue about employer-mandated stretching and exercise is why employers mandate it in the first place. Stretching is thought to reduce the risk of musculoskeletal injuries which would be covered by workers’ compensation. But research is not entirely clear as to whether stretching  reduces the risk of injury in the workplace.



Workplace stretching, ergonomics and wellness programs

Advocates of workplace stretching state that stretching is just one part of injury prevention. Employers also need to focus on ergonomics and other preventative measures in order to prevent injury. But, ICYMI, employers are not required by law to implement ergonomics programs. In fact, OSHA is prohibited by law from even considering mandatory ergonomics thanks to the Congressional Review Act.

Workplace stretching supporters also support employers using early intervention to address musculoskeletal injuries. But many employers don’t follow the advice offered on workplace wellness blogs. I have many clients, particularly in the livestock and meatpacking industries, that complain about soreness from overuse injuries. The response is often less than supportive from management. They are told that pain is just part of the job.

Workplace exercise and stretching and the ADA

Workplace exercise programs raise an immediate concern for workers with physical disabilities. Sometimes disabled workers are unable to complete stretches or exercises because of their disability. A refusal of to do these stretches could be construed as a refusal of work duties, so employees may feel pressured to complete the exercises and risk injury.

In my opinion, the best practice for an employee faced with this situation would be to get a medical note excusing them from exercises or stretches or allowing a modification. In other words, an employee needs to attempt to seek a reasonable accommodation for their disability under the Americans with Disabilities Act. (ADA)

Sometimes employees can’t afford to go the doctor or can’t easily access medical care. I think an employee can still ask for an accommodation based off old restrictions or even on their own.  But to be blunt, employers don’t always take self-reported restrictions seriously. That is often the case with courts as well if those self-reported restrictions lack basis in the medical records.

In short, it may be difficult for an employee to avoid being fired for refusing to perform mandatory exercises or stretching. But if push comes to proverbial shove in litigation, an employer may be in a tough spot if they fire an employee for refusing to do exercises. Disability discrimination laws protect qualified employees who can perform the essential function of their job with or without accommodation. Arguably stretches or exercises would not be an essential function of a job.  This could be particularly true of an employee is able to do their job and or if the stretches have little to do with an employee’s job duties.

But litigation is time consuming and expensive. So an employee who is forced to do stretches that aggravate an old injury or health condition should try to work with a doctor and employer, if possible, to either get excused from the exercises or to get the exercises modified.

The ADA and wellness programs

The legal issues posed by mandatory stretching for injured and disabled employees reflects a more generalized concern about wellness programs under the ADA. Federal courts partially struck down an EEOC regulation about wellness programs as they discriminated against older and disabled workers. And like mandatory exercise and stretching, studies are inconclusive as to whether wellness programs benefit employees.

The presidential election and confirmation hearings for Amy Coney Barrett have focused attention on potential changes to federal regulatory agencies and the federal courts. Narratives about regulatory agencies and courts often pose Democrats as pro-worker and Republicans as anti-worker. But the EEOC enacted the wellness program regulation during the Obama administration as part of the Affordable Care Act. Conservatives often argue against deferring to regulations issued by executive agencies based on separation of powers arguments. But in this case, workers used a separation of powers argument to strike down an anti-worker policy.

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

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

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

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

So why did this agreement rub me the wrong way?

Trust and stigma in workers’ compensation

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

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

The role of the nurse case manager

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

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

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

How the work restriction agreement works and can work

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

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

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

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

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

Why nurse case managers have clout

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

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

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

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Ghosted by your workers’ comp. insurance company?

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The workers’ compensation insurance industry likes to talk about patient advocacy. But after a certain point in a claim, injured workers are often left hanging by insurance companies and the nurse case managers they hire to manage employee medical care.

Workers left in a lurch by insurers are often confused or ignorant about how to proceed in a claim. And surprise, surprise, insurers use this ignorance and confusion against injured workers.

Here are some common scenarios when injured workers get ghosted by insurers or nurse case managers in workers’ compensation claims.

Medical care

Employers have an affirmative and ongoing duty to offer medical care to injured workers. But what happens when a doctor, particularly, a surgeon states an employee is done with treating a work injury and employee is still in pain? Bluntly often this means that an employee stops getting treatment. But assuming an employee has the ability to get medical care outside of workers’ compensation, an employee still faces challenges.

If an employee seeks treatment for pain and that treatment is related to the injury, sometimes employers will argue that they don’t have to pay for that treatment. Nebraska Workers’ Compensation Court Rule 50 holds an employee is stuck with the doctor they chose at the beginning of the claim unless 1) the defendant denies medical care or 2) the parties agree to a change or 3) the court orders a change.

What constitutes a denial of care is a crucial question. Employers have an affirmative and ongoing duty to offer medical care to injured workers. The safest route for an employee is to ask the insurer to approve medical care. But that isn’t always possible if employees don’t have that information or adjusters don’t respond to inquiries. Insures also tend to ignore injured workers who don’t have a lawyer.

Arguably, not offering medical care is a denial of compensability, so an employee can chose to any provider doctor and have those bills paid. An ongoing and affirmative duty to offer care should mean an employer can’t get out of paying medical bills just because the stopped communicating with you about your claim. However, getting medical bills paid in that situation will probably involve hiring a lawyer and going to court. Many employees are intimidated by that process.

Why employers should offer you medical care

Employers have good reason to offer ongoing medical care. First of all, an injured worker can lose out on disability benefits if they decline medical care Neb. Rev. Stat 48-120(2)(c). By offering medical care, an employer can also maintain control over medical care. A recent case provides a good example of the protections that employers are entitled to if they offer medical care.

The Nebraska Supreme Court held in Rogers v. Jack’s Supper Club that an employer was not responsible for paying for bills incurred for treatment in Florida for an employee who moved from Nebraska to Florida. The court held so because the employee didn’t ask to formally change doctors from the court or the employer.

I think Jack’s Supper Club is a harsh result. I believe Neb. Rev. Stat. 48-120(6) gives judges broad latitude to order changes of doctors under Rule 50.  But in that case the defendant actually offered medical care to the injured employee. Arguably, the defendant in that case, met their affirmative duty to offer medical care and did not deny compensability.

Aren’t they supposed to pay me something?

While employers have a duty to offer you medical care for a work injury, their duty is less clear when it comes to paying permanent disability benefits. Again, insurers and nurse case managers tend to disappear after surgical care ends. Usually when a surgeon releases an injured worker from care they are deemed to be at maximum medical improvement or MMI.

I’ve written quite a bit about employers/insurers short change employees by ending payment of temporary disability and delaying payment of permanent disability. But that squeeze or delay presumes an employee actually gets paid permanent disability. In order to get paid disability for an injury to a specific body part, a doctor generally needs to give an impairment rating. But usually someone needs to ask for and pay for an impairment rating.

Often times insurance types just don’t ask for the impairment rating. Once they insurer gets an impairment rating, they have 30 days to pay the value of the impairment rating to an injured worker. But they don’t have a spelled out duty under Nebraska law to ask for an impairment rating the same way they have a duty to offer medical care.

I would argue the beneficent purpose of the Nebraska workers’ compensation act would give insurers a duty to ask for an impairment rating. But it might be up to the Unicameral to impose that duty on insurers.

Do I have an impairment rating for my injury?

If you had surgery, you almost certainly have an impairment rating. That impairment rating is likely worth at least a few thousand dollars of tax free money. If you have had surgery there is a reasonable possibility you will need some medical care in the future. Impairment ratings and future medical care cost insurance companies money. One reason that insurers and employers ghost injured workers is that they are hoping they won’t make additional claims or ask for payment of benefits that they are owed.

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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Debates over extended unemployment mirror issues in workers’ compensation

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Congress is still working to extend enhanced unemployment benefits in response to the COVID-19 pandemic that expired in July. I believe the debates over extending unemployment benefits parallel issues debated in the world of workers’ compensation.

Secondary gain and 70 percent

Critics of the recently expired $600 per week federal supplemental unemployment benefits argue the benefits discourage work. Insurance types also argue that workers compensation benefits discourage work. In many claims these attitudes find their way into medical records when doctors describe workers as malingering. A related concept is known as secondary gain.

White House economic adviser Larry Kudlow proposed capping unemployment benefits at 70 percent of salary. Kudlow believes this rate of payments doesn’t discourage work. It so happens that workers compensation benefits in Nebraska, and most other states, are limited to two-thirds of an employee’s average pay. So under Kudlow’s assumption, workers compensation benefits shouldn’t discourage work.

But I doubt being confronted by their own logic is going to change insurance company practices and attitudes. Insurers and self-insured will push employees to come back to work as soon as possible even if it means commuting long distances or relocating to perform meaningless work. Some employers also like to force injured workers to perform volunteer work rather than receive workers’ compensation benefits.

Supplemental unemployment and temporary partial disability

The Republican plan to cap unemployment benefits at 70 percent of wages requires states to individually calculate benefit levels for each clamant. Democrats argue this would create administrative hassles for state agencies determining unemployment benefits. Democrats argue that a flat supplemental rate is simpler to administer.

The dilemma of supplemental unemployment mirrors the dilemma of temporary partial disability or TPD. Employees are entitled to TPD when they are working for less money than they were earning before accident. TPD is meant to make up the difference between the two wage rates.

Paying temporary partial disability benefits also crates administrative hassles because it requires close cooperation between HR departments and insurance companies. Often times the difficulties of paying temporary partial disability benefits means that workers don’t receive temporary partial disability benefits.

Of course, as unemployment soars short-staffed state departments of labor have struggled to process claims and pay benefits in a timely manner. Adding more difficulty in determining unemployment benefit rates means that these delays could continue.

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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Did it get easier for employers to dodge workers’ compensation in Nebraska?

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A recent Nebraska Supreme Court decision, Abotyes-Mosqueda v. LFA, made it harder for some workers to claim workers compensation benefits and easier for employers to classify workers as independent contractors.

Statutory employer

In this case the plaintiff attempted to join LFA as his statutory employer. A statutory employer is a contractor who works with a subcontractor in order to avoid liability under the Nebraska Workers Compensation Act. LFA subcontracted with Ismail Huerta who recruited a crew that included in the plaintiff. Huerta did not have workers compensation insurance. When plaintiff was hurt, he claimed workers compensation against LFA. 

In his favor, plaintiff had evidence showing that after the injury LFA required Huerta to obtain workers’ compensation insurance. That would point towards LFA being a statutory employer.

But the court found that the plaintiff could only join LFA as a statutory employer if he was an employee of Huerta. The court found he was not actually employed by Huerta. The court used a 10 factor test to determine that plaintiff was an independent contractor.

I would note that the court merely went through the traditional 10 factor test rather than look to the economic reality of the relationship between Huerta and the plaintiff. Nebraska appellate courts have traditionally done that analysis. I am not sure if that would have made a difference in this case, but I wish the court would have asked and answered that question.

The ABC Test

The question of whether the plaintiff was an employee likely would have come down differently if the ABC test was applied. In the ABC test a worker is an employee unless: they are 1) free from control of work both under contract and in fact 2) service is outside of normal course of business and 3) the workers is customarily engaged in a trade, occupation, profession or business. The ABC test applies to unemployment benefits in Nebraska.

But there is another distinction between how employees are classified under Nebraska workers’ compensation and unemployment law.

Burden of Proof

Under the Nebraska Employment Security Act (unemployment) the employer has the burden to show they meet the ABC test. But the Nebraska Supreme Court held in this case, that it is the employee who has the burden to prove the employment relationship. The court made a very general citation to the act in support of this proposition. However employees do have the burden of proof to show they were injured arising out of and in the course and scope of employment. It will probably require legislation to shift the burden of proof on employment status onto employers in workers’ compensation cases.

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

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Who is this nurse case manager and why are they talking to doctor about my workers’ comp. case?

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Work injuries create many problems; pain and loss of function from the injury, medical bills, lost wages and fear of employer-retaliation to name a few. But today I want to post about another hassle that comes with a work injury:

Nurse case managers.

Nurse case managers are nurses from the insurance company or workers’ compensation claims administrators who attempt to “manage” medical care for injured workers. While nurse case managers talk about “patient advocacy”, they work for the insurer or claims administrator. From what I can tell, their version of “patient advocacy” is to talk doctors into releasing injured workers from care without restrictions and without future medical care.

Nebraska courts hold that nurse case management services benefit employers. So why does Nebraska allow nurse case managers to run amok, while other states strictly regulate them? Nebraska’s state constitution and our state’s workers compensation rules explain why nurse case managers can get away with violating the privacy of injured workers.

The right to privacy under state constitutions

Nebraska does not recognize a right to privacy in our state constitution.  Montana and Illinois recognize a right to privacy in their state constitutions. That right to privacy under those state constitutions is part of the reason why nurse case managers on a tight leash in those states. Courts in those states have ruled that injured workers have a strong privacy interest in their medical records and laws that impair that privacy should be subject to strict scrutiny.

But it’s not just nurse case managers who try to interfere with the doctor-injured worker relationship In Nebraska attorneys for employers and insurance companies often to talk to the doctors of injured workers.  These conversations are usually had for the purpose of getting doctors to change their mind about their opinions in the case. Since these lawyers are representing an insurance company who pays their bills, most doctors are willing to speak with these attorneys. (It’s a different story for lawyers who represent injured workers in workers compensation cases.)

Like defense attorneys, nurse case managers are a representative of the insurance company/employer. They have a right to communicate with medical providers under Nebraska law. And again, the nurse case managers have some leverage over medical providers. They may also develop professional relationships with providers that can help their work.

Will Nebraska amend our state constitution to guarantee a right to privacy? The right to privacy is often used to support abortion rights, so any effort to amend our state constitution to allow for a right to privacy would likely be opposed by anti-abortion activists who are influential in Nebraska.

Why the Rules of Discovery undermine privacy

But even if Nebraska had a right to privacy in our state constitution, Nebraska would either need to pass legislation and or change the workers’ compensation court rules to regulate nurse case managers. I’m not sure that would be feasible without some other changes to rules within the Nebraska Workers’ Compensation Court.

The rules of civil discovery apply within the Nebraska Workers’ Compensation Court. Those rules give employers and insurance companies broad leeway to pry into the medical history of injured workers. States like Illinois adjudicate workers’ compensation claims as administrative claims. In administrative systems employers have more restricted access to an injured workers’ health history.

Fighting back against nurse case managers

While Nebraska law permits the use of nurse case managers, Nebraska law can be used against nurse case manager. Many attorneys in Nebraska believe that nurse case manager notes are discoverable. Those notes often reveal admissions that help injured workers.

Our firm routinely tells nurse case managers not to have contact with our clients. Sometimes that means nurse case managers will stay out of examination rooms. I have used the discovery rules against nurse case managers on the issue of when they knew about permanent impairment for the purposes of penalties under Neb. Rev. Stat. 48-125. I think it’s fair to inquire about any licensing issues a nurse case manager may have had through discovery. I think its also fair to impeach a nurse case manager with evidence of licensing issues on cross-examination.

Final thoughts on nurse case managers

Overall, Nebraska has good workers’ compensation laws – particularly in comparison with neighboring states. But, Nebraska law is less favorable than other states when it comes to nurse case managers. If one gets involved in your workers’ compensation case, it might be a good idea to call a lawyer.

(Credit to Mark Perper and Tom Murphy for sharing Illinois and Montana claw on this issue on the WILG listserv)

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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More questions than answers on apportionment in Nebraska workers comp.

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Instead of pension benefits or 401k balances, many workers accumulate work injuries. But does compensation for a prior injury rule out compensation for a subsequent injury? After a recent state Supreme Court decision, some workers in Nebraska could be subjected to that outcome.

In Picard v. P&C Group 1, the Nebraska Supreme Court held that an employee who was compensated for permanent disability for a two wrist injury in 2012 could not be compensated for a permanent disability for a lower back injury in 2015 since they had returned to work in at higher pay/

Apportionment or not?

To workers’ compensation lawyers this is apportionment.  Apportionment is attributing permanent disability for a current injury to a prior injury. However, the Nebraska Supreme Court specifically held Nebraska does not apportion injuries and is a full responsibility state. 

But the court held that plaintiff had already been compensated for permanent disability for their two-hand injury. So as a result. they could not be compensated for their lower back injury. This decision reversed a trial court decision holding the plaintiff had a 75 percent loss of earning power for the wrist injury in 2012 and a 50 percent loss of earning power for the 2015 injury.

The court relied on the fact that the defendant had placed plaintiff in an easier job after the 2012 injury and that plaintiff continued to do their job after the 2015 injury. The court also pointed out that plaintiff was earning more after the 2012 injury and more than they were after in the 2015. These facts lead the court to hold plaintiff had not suffered a loss of earning power for the 2015 injury.

SMH

The decision left many workers’ compensation lawyers in Nebraska shaking their heads. First, the 2012 injury and the 2015 injury involved restrictions to different body parts. There were two separate sources of disability. But the court reversed the trial courts decision to award benefits to for the second injury.

Secondly, the decision appeared to ignore established definitions of loss of earning power. Sure the plaintiff was earning the same (or more) wage after the 2015 injury as before, but that back injury would likely disable the employee in the broader job market. The injury would also likely prevent them from working at some jobs within the plant. That’s why the vocational counselor found the plaintiff had a loss of earning power. The court ignored that and just found that the plaintiff had higher wages than they did before the accident, so they had no loss of earning power.

I’m also disturbed by the argument that plaintiff was earning higher wages post-accident. I hear this argument all the time from employers when I have cases when employees are still employed. True, wages go up in a nominal sense, but so does the cost of living. A worker who receives a cost of living raise doesn’t really increase their earnings.

This decision further ignored several other precedents set by the court when dealing with compensated and non-compensated injuries. It also ignored combining pre-existing conditions and injuries with a current work injury that results in a higher disability for an injured worker. 

What Picard doesn’t change

To be clear, the Picard decision only applies to permanent disability. Injured workers can still receive medical benefits and temporary disability benefits if they were injured previously. The Picard decision also only applies to so-called “non-scheduled” injuries. Workers who previously had a “scheduled injury” can be paid for another scheduled injury or for a new non-scheduled injury. Workers who previously had a scheduled injury can be paid for non-scheduled injuries. Scheduled injuries are paid based on the damage done to the body. In contrast, non-scheduled injuries are paid based on how the injury effects your ability to earn wages.

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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When is a cut not just a cut?

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Most people will cut accidentally cut themselves doing chores around the house. But a cut on the job can lead to serious consequences for many workers. So when is a cut not just a cut?

Industrial amputations and crush injuries

Workers in meatpacking and manufacturing frequently suffer serious cuts and amputations from blades and crush injuries. From a legal perspective, employers often accept initial responsibility for these injuries under workers’ compensation.

But even if the employer accepts responsibility for paying workers compensation, the employer may attempt to blame the employee for the injury. This means employers will pay medical bills related to a cut or amputation,  but will fire the employee for some safety violation. Employers will often deny paying temporary disability benefits to an employee they accuse of violating safety rules.

Safety violations and retaliation

Employers can argue employee safety violations as a defense to paying workers’ compensation benefits. I will concede that sometimes employees violate safety rules. But other times, employers fire employees on flimsy pretext of a safety violation. Employees may be able to bring a retaliation case in that circumstance.

But, Nebraska workers’ compensation law might also provide some additional remedies for an employee fired for a bogus safety violation. Nebraska workers’ compensation law awards a 50 percent penalty and attorney fees if there is no reasonable controversy about entitlement to benefits. No reasonable controversy is a difficult standard for an employee to meet. But a flimsy termination related to a work injury used to deny benefits  is one circumstance where fees and penalties may be likely.

Moisture,  infection and amputation

But even less serious cuts can present complications. The complication I see the most is moisture. Workers in packinghouses often work in wet environments. This moisture can infect cuts and lead to amputations.

Moisture can also present other issues. For example, a food service employee required to wear gloves during their work would sweat under the gloves. That sweat would increase the risk of infection of a cut and could lead to an employee missing work.

Side effects of medication

Medications can reduce the risk of infection for a serious cut. But medications have side effects that can sometimes require medical treatment. In a recent Virginia case, a bowel disorder caused by medication prescribed to prevent infection was an injury covered by workers compensation. The Virginia decision relied on the so-called “compensable consequences” doctrine. Nebraska recognizes the “compensable consequences” doctrine and will pay benefits related to adverse side effects of medication.

But workers’ compensation insurers often balk at covering infections from cuts and side effects of taking medication from work injuries. Cut, crush and amputation injuries aren’t the only injures that involve compensable consequences. However, proving these consequences is easier in cut and crush cases because of the obvious nature of the injury and how it was caused.

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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