Tag Archives: Workers Compensation

Will fading federal privacy rights limit ability of injured workers to protect privacy?

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But if states enshrine privacy rights in their state constitutions in reaction to probable Roe reversal will it limit the influence of insurance case managers in workers’ compensation claims?

If the United States Supreme Court does in fact overturn Roe v. Wade, as it seems they will based on a draft opinion leaked last week, it would be the most important Supreme Court decision in decades. But does the decision have any impact on the state-based, statutory and administrative world of workers’ compensation?

I think it could when it comes to the use of nurse-case managers and the right to privacy. Case managers will often attend medical appointments with injured workers. Experienced case managers are able to direct medical care in a way advantageous to employers in workers’ compensation cases.  States that have rights to privacy in their state constitutions such as Illinois and Montana, are able to reign in insurance case managers from interfering with the medical care of injured workers in workers’ compensation cases.

But, Justice Alito’s draft opinion in the Dobbs case calls into question the right to privacy under the United States Constitution. In theory, even if a state constitution didn’t expressly contain a guarantee of privacy, an employee could at least at least use a  federal right to privacy to limit the access of a case manager to medical information. But if Roe v. Wade is gone or dead letter law, that option is gone for injured workers.

Red states v. Blue states and the right to privacy

In 2020, I wrote that anti-abortion organizations and elected officials would likely try to block any efforts to impose a state right to privacy in the Nebraska state constitution. I could see that happening in other Republican-dominated red states. But will other “blue” or Democratic-governed states follow Democratic-governed Illinois in guaranteeing a right to privacy in their state constitutions to protect reproductive health and abortion rights? We will see. But if those states did enact right to privacy amendments, they could impact the day-to-day business of workers’ compensation claims in a way that could benefit workers.

Waiving privacy in an injury case?

But even if employees can keep hostile third-parties out of medical appointments in workers’ compensation cases, normally private medical information is usually fair to ask about and disclose in a workers’ compensation case. Nebraska follows the civil discovery rules in workers’ compensation cases which gives employers a lot of leeway to look into medical history and subject injury claimants to medical examinations. Sometimes these inquiries can be demeaning. Employees do have some tools to stop excessive and unreasonable requests for medical information, but if the right to privacy is weakened they have one less tool to protect their dignity in a workers’ compensation claim.

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 Ketanji Brown Jackson could hear a workers’ compensation case at the beginning of her Supreme Court career

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TLDR: In short, I think the issue of whether requiring insurers/employers to reimburse employees for medical marijuana under state workers compensation laws is pre-empted by federal criminal law is one the Supreme Court will take up. Federal criminal law is a strong federal basis to review a preemption question. I also believe medical marijuana in workers compensation addresses federal criminal law issues in addition to separation of powers issues.  All of these factors distinguish medical marijuana from the issue of air ambulances charges in workers compensation that also involves preemption, but the Supreme Court declined to address in 2021.

District Columbia Circuit Court of Appeals Judge and Supreme Court nominee Ketanji Brown Jackson is going through Senate confirmation hearings this week. But if she is confirmed, could one of her first cases involve an issue about workers’ compensation?

I think so.

Last month, the Supreme Court asked the Solicitor General to submit a brief to help them decide to whether to hear an appeal from two Minnesota cases where that state’s high court decided that federal drug laws preempted Minnesota insurers/employers from needing to reimburse injured workers for medical marijuana under their state’s workers’ compensation laws.

Minnesota joined a growing number of states that have split over whether federal drug laws preempt their state workers compensation laws when it comes to medical marijuana. Last spring the United States Supreme Court declined to hear another conflict between state and federal law over air ambulances that split many state and federal jurisdictions.

But after reading the Minnesota decisions, I think it is more likely the Supreme Court will weigh-in over medical marijuana and workers’ compensation. Not only does medical marijuana involve a conflict between state and federal law, it is also implicates criminal law and separation of powers between the executive branch and the executive branch of the federal government.

Criminal law and medical marijuana in workers’ compensation

The split over medical marijuana in workers’ compensation turns on two questions 1) are insurers/employers aiding and abetting illegal activity under federal law by re-imbursing injured workers for medical marijuana through workers compensation and 2) are employers/insurers at risk of breaking the law by re-imbursing workers for medical marijuana.

The first question turns on how to interpret “aiding and abetting” and intent under criminal law. The second question goes to separation of powers issues. While marijuana is illegal under federal law, Congress has passed legislation through spending bills that prohibits the Department of Justice from prosecuting users and distributors of medical marijuana.

Further complicating the analysis is that fact the Department of Justice has shifted its policies about whether they will prosecute medical marijuana users and distributors depending on which party controls the White House.

As stated above, the medical marijuana cases also involve a question between whether federal powers to regulate interstate commerce conflict with state’s 10th Amendment police powers that are the constitutional basis for workers’ compensation. The court declined to ponder that conflict in the Texas air ambulance appeal last year. My hunch is that the Supreme Court believes federal criminal law provides a stronger basis to preempt state workers’ compensation laws than laws regulating air travel

For example, federal courts are moving away from giving deference to how federal agencies that regulate the domestic economy interpret the laws they enforce. But courts are still deferential to the executive branch when it comes to matters of national security.  My feeling is that conservative-leaning Supreme Court is going to federal criminal law as closer to a matter of national security than economic regulation.

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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Home is where the chart is when it comes to doctor choice in Nebraska workers’ compensation

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Nebraska workers’ compensation law allows injured workers to pick their own doctor to treat their work injury. But what if an injured worker picks their doctor to treat their work injury, but gets treated by another doctor at their doctor’s clinic?

I believe Nebraska law would let an injured worker see another provider who practices with an injured worker’s doctor. But, not surprisingly, some nitpicking types on the employer/insurance side of workers compensation don’t think an injured worker should be able to treat with the partner of an injured worker’s family doctor.

Why you should be able to treat for a work injury with another doctor at the clinic where your doctor practices

Under Nebraska Workers Compensation Court Rule 50(A)(2) an injured worker can chose a family physician to treat for a work injury. Per Nebraska Workers Compensation Court Rule 49(E) a family physician is one who maintains records and has a documented history of treating the injured workers or a family member.

So when it comes to workers’ compensation doctor choice in Nebraska, home is where your medical chart is found. For example, if your provider is Dr. Smith at the Main Street Clinic, Dr. Smith’s partner, Dr. Jones, should be able to treat you for a work injury if Dr. Smith is unavailable. The key fact is that your medical records are that clinic, which would aid any provider in treating you for a work injury.

The importance of doctor choice in workers’ compensation

Most people would probably say its common sense that you should be able to treat with a doctor at the same clinic as your regular doctor if your regular doctor isn’t available. But there is a whole cottage industry of management-friendly medical providers that seek to talk workers out of exercising their rights to pick their own doctor to treat a work injury in Nebraska. I wrote a post a few years back, picking apart some talking points to that effect sent out by an occupational medicine clinic in Omaha.

But management-side talking points about why injured workers shouldn’t pick their own doctors to treat work injuries aren’t solely based on faulty logic and assumptions. Intimidation substitutes for persuasion when it comes to employers and insurers pushing injured employees to employee-friendly doctors and medical providers.

What if your doctor is really a P.A. or nurse practitioner?

Lots of people get their primary medical care from physician assistants or nurse practitioners. If those providers practice under the supervision of a medical doctor, then I think an injured worker should be able to pick those providers. After all, the employee’s medical records are at the office of that provider.

But a P.A. or Nurse practitioner might not be able to testify by report in a Nebraska workers’ compensation case without a supervising doctor signing off on the report. But in serious injuries, primary care providers refer out to specialists who are almost always able to testify by report. And secondly, there is a distinction between who can testify by a report a workers’ compensation case and who can treat a workers’ compensation claimant in Nebraska.

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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Workers suffer when HR passes FMLA leave decision buck to disability insurers

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“So what exactly would you say you do here?”

Anyone who has seen Office Space is probably familiar with this quote. I think the quote applies to big corporate Human Resources (HR) departments that outsource Family Medical Leave Act (FMLA) eligibility determinations to private disability insurers.

One purpose Congress had in passing the Family Medical Leave Act in 1993 was that there was “inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.”

The way some big employers determine FMLA eligibility flies in the face of this purpose. If you wanted to design a system to fire workers with health conditions, I’m not sure the craftiest HR and legal minds representing management could come up with a better way to do so than outsourced leave administration.

Why outsourcing leave decisions to private disability insurers is a bad idea

FMLA is unpaid leave. Many employers use short-term disability as paid leave. But if you need to be off-work to get short-term disability then the decision about eligibility for FMLA and disability are one in the same. But if a short-term disability insurer is the decision maker, they have a reason to deny claims because paying claims costs money. So in essence, an employees right to unpaid leave is premised on an insurance companies decision about paying disability benefits.

That this is a terrible idea should be apparent to everyone to knows how insurance companies work.

And seeing exactly how this process harms workers is infuriating.

FMLA leave determinations should be simple

If you work at a big employer, you’ve been there for a year or more and have worked more than 1250 hours in that year and you can’t work because of a health condition or the health condition of a loved one, you’re eligible for Family Medical Leave Act. It’s basically that simple.

FMLA issues often arise when a worker gets hurt on the job. So if a worker brings in a doctors note with work restrictions that an employer can’t accommodate, you would think it would be as simple as HR looking at payroll records to see if an employee is eligible for FMLA.

Plaintiff’s lawyers like me make these determinations all the time in a few minutes when prospective clients call in about claims. I fail to understand how HR managers at large worksites for major companies can’t make the same decisions with the resources they have available.

But that’s not how things work with many major employers.

How outsourced leave works

So instead of the process I described in two paragraphs above. Outsourced leave decisions require the employer and an outside entity to communicate about an employee’s leave eligibility. It also requires an employee, who typically doesn’t have a lot of experience with paperwork, to send documents to their employer and to the leave administrator. Often times these documents are sent by medical offices. Sounds complicated, lots of room for error. Employers have lots of reasons to claim they didn’t get documents or blame employees for not properly communicating.

But it can get even more complicated when some company nurse is hassling an employee or their doctors about a return to work before they are ready.

It gets even more complicated when someone in HR or a company nurse engages in Dwight Schrute/Toby Flinderson-style amateur sleuthing to uncover alleged employee fraud or abuse of FMLA.

Ongoing complications due to remote work by insurers during the pandemic don’t help out either.

All of these complications need to viewed in the context of the disability insurer/leave decider being fundamentally adverse to the workers asking for disability insurance and leave.

Sure, an experienced lawyer would know how to navigate this web. But when it comes to leave applications, blue collar workers are often thrown into this hostile maze without assistance or even knowing where to turn for help.

Why outsourced leave?

Outsourced leave is usually administered in conjunction with short and long-term disability insurance. Employers like these policies, in part, because they are good ways to shift the cost of work injuries away from workers compensation. I think this particularly true for injured workers who may have aggravated an old injury, had an overuse injury or didn’t report injuries immediately. These workers are often mislead by HR and employee health types that workers compensation coverage isn’t available in those situations.

Of course, pushing employees who are hurt on the job to apply for short or long-term disability is just pouring glue on the already sticky situation described above. An application for short-term disability can muddy a claim for workers compensation and vice-versa. A private disability carrier may claim a right to repayment for workers compensation benefits. A private disability company may also have policies that in effect require their beneficiaries to apply for Social Security Disability Insurance. This can complicate a workers compensation claim as well.

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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Human capital disclosure rule effects being felt in Nebraska workers’ compensation

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Most observers expect newly-confirmed Labor Secretary Marty Walsh, a former leader in the Laborers’ International Union, to focus on workplace safety. But one of the most immediate impacts of a federal executive branch on workplace safety is coming from an unexpected source – the Trump administration Securities and Exchange Commission (or SEC)

This potential boon to workplace safety is known as the Human Capital Disclosure Rule which as enacted in November 2020. A  recent call from a client tells me it could already be having an impact.

The human capital disclosure rule

I got a call from a client who works at Tyson. Tyson stock is publicly traded. The client informed me the plant was offering to pay the unpaid medical bills of their employees who were hurt at work.

My first reaction was along the lines of “isn’t that what workers comp. is for, what are they trying to pull?” (I took out the profanity) But then I remembered this human capital disclosure rule.

The human capital disclosure rule was implemented because 85 percent of corporate costs are “human capital” and if investors want to be able to value companies they need to do know the cost of “human capital.”

If you run a meatpacking company, one major component of human capital costs is the price of work injuries. In theory, you should be able to measure those costs through workers compensation. But things are different in practice.

Cost-shifting

In practice those costs of work injuries get shifted on to health insurance, Medicare, Medicaid, Social Security and private disability. This is largely a function of aggressive claims handling practices that make it difficult for injured workers to get workers compensation benefits.

But if investors want to know the costs of work injuries, even a major food processor wouldn’t be able to measure the cost of work injuries. So, companies are improvising with programs like the one described by my client. These special programs could give employers and investors a better idea about the true cost of medical care from work injuries.

Impact of voluntary payments on workers compensation in Nebraska

Payments for work injuries made to comply with the human capital disclosure rule could impact eligibility for benefits under the Nebraska workers’ compensation act. I would argue that such payments would extend the statute of limitations on a claim if they were paid within two years of the last payment of benefits. A voluntary payment of benefits once the statute of limitations two year statute of limitations had run would not extend a claim.

A different take on the human capital disclosure rule in the Biden administration?

The commentary on the human capital disclosure rule states that employers have a lot of discretion about how to implement the rule. Maybe, the more worker-friendly Biden administration may implement tougher standards to force some employers to more accurately measure the cost of work injuries.

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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Exercise, the injured worker and workers compensation

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Warmer weather and reopening of gyms and health clubs could prompt many to renew exercise routines. But if you are recovering from a serious work injury, training for the half-marathon or signing up for crossfit is out of the question.

Fortunately, even moderate exercise benefits physical and mental health. The problem for injured workers is that even supposedly moderate activity may fall outside safe activity limitations.

So what can an injured worker do to maintain their overall health through exercise?

Talk to your doctor and physical therapist

Injured workers need to communicate with their doctors and physical therapists about what kinds of activities they can do safely. Sometimes workers are reluctant to communicate with doctors or therapists because they don’t trust the providers. They don’t trust their doctors and physical therapists because they believe the providers are influenced by their employer or workers compensation insurer. Bluntly, this belief is sometimes well-founded.

But asking about ways to safely stay active is one way to at least curry some favor with a medical doctor or therapist who might sympathize with an employer. Medical providers like patients who want to take part in their own recovery from an injury.

Exercise and credibility

Another group of learned professionals tends to like injured workers who try to stay active despite an injury – workers compensation judges. I think active clients persuade judges for a few reasons. I think Judges read medical records closely and pick up whether doctors like and believe plaintiffs. Doctors like patients who live a healthy lifestyple.

Activity also tends to improve vital signs like blood pressure, weight and resting pulse that are included in the medical records that judges read. Improvements in those vital signs are objective evidence that an employee is actively trying to recover from an injury.

Client credibility matters in workers’ compensation cases because believability often tips the scale on issues like whether an injury is covered by workers compensation and the extent of benefits payable for a work injury. In my experience, the injured worker who does their best to stay active in a safe way tends to win those credibility questions.

Occasionally workers who claim to be unable to work get caught on video doing strenuous exercise. Nevermind, that most workers’ compensation fraud isn’t committed by employees, stories like this are grist for the myth that workers’ compensation cases are almost per se fraudulent. But I believe that a judge can distinguish between someone doing a moderate exercise like walking versus a strenuous exercise like heavy weightlifting or long distance running.

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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Don’t bet on workplace safety

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Decent people reacted with shock and disgust to news of allegations that managers at a Tyson meatpacking plant in Waterloo, Iowa were making bets about the number of workers who would catch COVID-19.

The allegations were included in a wrongful death claim filed by the family of a worker who allegedly died from COVID exposure at the plant. Iowa allows workers to get around the limited compensation available under workers’ compensation if the employee can prove their injury was caused by the gross negligence of another employee.

If true, managers betting on employee COVID-19 exposure would likely be evidence of gross negligence. So besides another example of man’s inhumanity to man, what does the COVID-19 betting pool tell us about workers’ compensation and workplace safety?

Good alternatives to the exclusive remedy of workers’ compensation

Iowa is fairly unique in allowing for negligence suits for work injuries. In Nebraska, and most other states, workers compensation is the only way that employees can be compensated for a work injury.  Lawyers and judges use the term the terms “exclusive remedy rule” or just “exclusive remedy” to describe workers’ compensation laws  The so-called grand bargain of workers’ compensation is that workers don’t need to prove negligence by their employer to be compensated for a work injury. In exchange they receive limited benefits.

But workers’ compensation has proven largely inadequate to COVID-19 due to difficulties in linking COVID-19 exposure to the workplace. While some cases are being prosecuted by employees they are hard cases to win that are only feasible in cases of death or serious injury.  Benefits in death cases also rely on proving a formal marriage relationship and or evidence of supporting dependents. Not all injured workers fall into that category.

Worse, the exclusive remedy rule has largely ruled out legal workarounds to the exclusive remedy rule.

However, Iowa’s allowance of tort cases, with higher potential payouts in cases of work injuries and deaths from COVID seems like the best way for seriously injured workers and their families to hold employers accountable. And bluntly, it’s not that great of an option.

Some readers may ask, isn’t OSHA, Occupational Safety and Health Administration, supposed to regulate workplace safety? If workplaces were safe there wouldn’t be a need for lawsuits. But OSHA sidelined itself early in pandemic

How OSHA sidelined itself in the pandemic

In April, OSHA announced it would not enforce record keeping requirements for COVID-19 for employers such as packinghouses. I believe that this sent a signal that OSHA wouldn’t take the pandemic seriously. OSHA later reversed the policy and even issued a few citations. But OSHA’s slowness to respond to COVID-19 cost lives both on the job and in the communities around COVID-19 hotspot workplaces.

OSHA continues to refuse to specific rules about workplace safety and COVID. Sure, once the Biden administration finally takes over and gets going, OSHA might issue some standards. But even in a Democratic administration, the Department of Agriculture, who also regulates meatpacking plant may seek to weaken workplace safety measures implemented by the Department of Labor. For example, while the Department of Labor did some innovative enforcement of meat processing plants in the Obama administration, the Department of Agriculture allowed some packers to speed up processing lines. Faster lines correlate with more injuries.

Why local media is matters in covering workplace safety, part 2

The story about the COVID pool at Tyson was broke by a local journalism outlet in Iowa. This is the second straight week, I’m writing about a workers’ compensation issue first reported on by local reporters. Local reporters are essential in covering workers’ compensation because workers’ compensation is a state law. Also, many unsafe workplaces exist well outside journalist-rich cities like New York City and Washington DC. It’s important to have good reporters in places like Iowa and Nebraska to tell the stories of workers there.

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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Unhappy holidays for voluntold light duty injured workers

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Christmas music started playing last week. Another familiar holiday sound started last week — holiday bell ringing by The Salvation Army. But many bell ringers may be injured workers who are being forced to volunteer at a “light duty” assignment.

Nothing under Nebraska law prohibits companies from assigning their injured workers to work for non-profits. In fact, a small industry has cropped up that matches injured workers with non-profits. Of course, that industry and apologists for workers’ compensation insurance industry call this practice a win-win for everyone. I think the benefits of forced volunteer or voluntold work don’t hold up under closer examination. But workers faced with a voluntold assignment face at least two problems:

Two bosses

Injured workers who are voluntold to do volunteer work are paid by their employers. Since the employers are paying them they have to answer to their employers. Workers are also accountable to onsite supervisors for the non-profit. Two bosses leads to communication problems and that often leads to problems for injured workers — who in practical terms are often already on thin ice with many employers for filing a workers’ compensation claim.

Different hazards

When a worker returns to work in a light duty job, there is a good chance that a supervisor has some idea about the employees work restrictions. That’s less likely when dealing with a new employer.

Some so-called light duty jobs aren’t always light. Some injured workers get temporarily assigned to work at Goodwill Stores. However most retail work requires a 50-pound lifting ability along with extended standing. Bell ringing usually requires long-term standing. And while insurance side thought leaders like to use terms like “resilience”, they have cushy indoor jobs. Trying standing outside on a cold December day in Nebraska for eight hours being forced to volunteer. This is never a pleasant prospect and it’s certainly more risky as the COVID pandemic extends into month eight in the United States.

Win-Win or Win-Lose?

The insurance industry touts the well-being benefits of volunteer to work to injured workers. But on closer look these benefits, nebulous as they are, are mostly backed by anecdotal evidence. But even if you take the benefits of corporate volunteering at face value, a lot of those benefits come through so-called VTO or volunteer time off programs. In those programs, companies have employees take time off for community projects or pay employees to volunteer for organizations they care about.  That’s a whole other situation from telling an injured worker to go out in the cold and raining bells for the Salvation Army 40 hours a week or they will get fired while they still recovering from an injury.

But while then benefits of voluntold jobs are dubious at best to workers, businesses who voluntold their workers get a nice some nice PR.

Why can’t workers just collect TTD and volunteer on their own?

Why can’t workers just volunteer for an organization they like and collect TTD? Many workers are rightly concerned that employers are surveilling them. But even if a worker isn’t under surveillance, employers and their insurance companies fundamentally like to control their employees — including and especially their injured workers. Employers want to control which doctors you see and what kind of care you get from your doctor through the use of nurse case managers.

But even if an employee manages to get proper medical care for a work injury, some employers aren’t content to let their workers stay home for a few months while they get healed. Employment at-will gives employers all sorts of leverage over their employees. Voluntold programs are just one example of how this power dynamic plays out.

Things work differently when a collective bargaining agreement is in place. Unions sometimes negotiate their own return to work programs. But I’ve seen insurance companies and their vendors ignore these agreements and try to force union members into voluntold jobs.

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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