Tag Archives: Workers Compensation

Why are mental-mental benefits generally limited to first responders?

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Convenience store clerks are often exposed to violence. But in order for them to be compensated for work -related mental trauma, they generally need to have a physical injury.

The question of why coverage of so-called “mental-mental” injuries, or work injuries that do not involve a physical injury, is generally limited to first responders is a question that is increasingly vexing attorneys for injured workers and commentators on workers compensation — and workers.

The answer boils down to politics.

From a logical and moral point of view there is no reason why a convenience store clerk and a police officer shouldn’t be able to collect workers’ compensation for purely mental injuries from exposure to violent crime. 

Legally that moral and logical sentiment is often expressed as an argument that such distinctions violate equal protection under state and federal constitutions. Advocates for injured workers have had some success in striking down so-called workers compensation reforms on equal protection grounds.

But while equal protection arguments can be useful in restoring rights to workers compensation, they are less helpful in creating new rights such as compensation for mental injuries. When addressing whether a law is constitutional, appellate courts usually decide first on what level of scrutiny to apply. The less stringent the scrutiny, the more likely the court will find the law to be constitutional.

Health and safety laws like workers compensation are generally afforded rational basis scrutiny by appellate courts. That means courts will generally uphold the constitutionality of those laws. That deferential level of scrutiny emerged out of the New Deal era as a way to uphold the constitutionality of laws relating to social welfare. But in the modern era rational basis scrutiny is often used to argue that the protections of laws like workers compensation shouldn’t be expanded by courts in a way not intended by a legislature.

In Nebraska it was the legislature that created compensation for mental-mental injuries for first responders and expanded that protection to prison guards and Department of Health and Human Services employees in contact with high risk indviduals. So ultimately providing protection for purely mental injuries to all workers — not just first responders — will be a political issue.

 

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, PTSD, Workers Compensation and tagged , , , , , , .

Nebraska Supreme Court rules on employment risk, attorney fees and third party claims

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The Nebraska Supreme Court has made three recent rulings about workers’ compensation

Three important cases have recently come down from the Nebraska Supreme Court regarding workers’ compensation claims.

Probably the case with the biggest impact is Maroulakos v. Walmart case. In that case, the Supreme Court affirmed a decision by the trial court that found that an injury was not compensable when a worker was injured because of an “idiopathic” fall. What makes this case distinct from its predecessors is that it appears as though there was possibly evidence that there was an increased risk to the injured worker, which could have made the idiopathic fall compensable. However, the trial court did not explore that option and the Supreme Court found that it could not make a determination on an issue that was not at issue during the trial court. In other words, it appears that the Maroulakos case puts an extra burden on the Plaintiff to ensure that an “increased danger” analysis is overtly pled and argued at trial for idiopathic falls. The concurrence in that opinion hints that the at the trial court level, the court probably should have conducted an analysis as to whether there was an increased-danger when there was evidence presented that could contribute to that analysis of an idiopathic fall.

Another recent case was Dragon v. Cheesecake Factory. In Dragon, the work comp case reached a settlement that was accomplished via a settlement release under Section 48-139(3). The settlement was not paid, however, within the 30-day limit proscribed in 48-139(4) and thus, the Plaintiff argued that he was entitled to a 50% penalty for the late payment. The trial court denied the penalty under a theory that it did not have authority to award a penalty after the release had already been signed. The Supreme Court overturned the finding of the trial court and awarded the penalty based on the fact that the Nebraska Legislature cleared up any ambiguity in the statute in awarding penalties for settlements that are not paid within 30 days.

The final case that recently came down worth discussing is Gimple v. Student Transp of America. In Gimple, there are two take-aways. First, if there is a third-party action, along with the work comp claim, the Work Comp Court does not authority to make a determination of future credits for the employer or work comp carrier based on any monies paid in that their-party action.

Second, if there is a stipulation and no dispute as to an injury; then, there is a permanent impairment assigned to that injury, the Defendant must pay the permanent partial disability in a timely manner, within 30 days. In other words, there is no reasonable controversy.

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 attorney fees, employment risk, Nebraska, third party claims, Workers Compensation and tagged , , , , .

Thanks for reading Nebraska Workers’ Compensation Watch

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My article in Trial Magazine started out as a post on this blog

If you are a member of The American Association of Justice (AAJ) you can read my article “Portable Benefits and The Gig Economy” in this month’s edition of Trial Magazine. If you are a plaintiff’s lawyer and not an AAJ member, you can click here to join AAJ.

If you are a non-plaintiff’s lawyer reader of this blog you can click here or here for what amount to rough drafts of the Trial article. (Sorry the article is copyrighted to AAJ and only available to members)

Briefly, the main takeaway from my article is that while the fight over worker misclassification as it relates to the gig economy is an old fight, the move to develop a separate employee benefits scheme is a new issue. Of course, some more senior practitioners, namely Tom Domer, have pointed out privately that remedies like today’s “portable” benefits” proposals were proposed in the late 19t/early 20th century when workers’ compensation laws were being proposed, debated and drafted.

I assume that I will be writing more about portable benefits in the future as events and time warrant. But for now, my next big blog project is going to be exploring how employment risk fits in within the so-called “grand bargain” of workers’ compensation. My thesis is that workers’ compensation developed in response to new risks from the newly industrializing economy of the late 19th century. Farm and domestic workers were excluded from those laws as judges in the late 19th century thought risks of those occupations where inherent. Putting aside legitimate concerns about how this excluded women and African-Americans from workers’ compensation, I think this exclusion is why employment risk is such a hotly contested issue as industrial jobs decline and service jobs increase.

This exclusion of workers from workers’ compensation, which is inherent in workers’ compensation, is one reason why I don’t like the term “grand bargain” in describing the origins of workers’ compensation. My dislike of the term grand bargain will probably be fleshed out over the next few months as well.

So thanks for continuing to read Nebraska Workers’ Compensation Watch. Thanks to all the attorneys, whether on the worker or management side, who take the time to write original content based on their experience in practice. I gain insight from what you write and I will continue to try to provide insight to lawyers and non-lawyers alike about workers’ compensation and employment law.

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, portable benefits, The Grand Bargain, Workers Compensation and tagged , , , .

Two worker deaths lead to criminal charges for Omaha corporation

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A memorial for two workers killed in Omaha in 2015. The employer is facing criminal charges.

An Omaha business is facing federal criminal charges in connection with the death of two employees in 2015.

Adrian LaPour and Dallas Foulk were killed on April 14, 2015 due to a fire in started by chemicals in a rail tanker car that they were cleaning. They were working for Nebraska Railcar Cleaning Services which had a long history of OSHA violations.

The criminal charges in this case stem from obstructing the investigation of the accident and violating federal safety rules rather than the death of the employee. In the rare cases where employers are prosecuted for workplace deaths, those types of charges are typical. Former Massey Energy CEO Don Blankenship was convicted in 2016 for violating federal mine safety rules in connection with the death of 29 miners in West Virginia in 2010.

The charges provided some sense of psychic justice for the longtime girlfriend of one the victims. That sense of psychic justice is often missing in work injury cases where an employer is at fault. Workers compensation benefits are limited, OSHA fines are often almost laughable and negligence cases may be difficult to prove. Even if a family can get a sizeable amount of money for a workplace death of a loved one, money is not a perfect substitute for the loss of a loved one. A criminal prosecution can help address emotional needs in a way a civil or administrative sanction can’t.

Criminal prosecutions also deter wrongful conduct by corporations and their owners.  Rod Rehm practiced criminal law in the 1970s and 1980s before focusing on workers compensation and personal injury cases. He has spoken out in favor prosecuting employers for manslaughter in connection with workplace deaths and criminal prosecution for employers who don’t carry workers compensation insurance. I commend Nebraska’s  U.S  Attorney,  Joe Kelly, for exercising his prosecutorial discretion and charging the owners of Nebraska Railcar Cleaining Services.

h/t to www.fairwarning.com for their reporting.

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 criminal law, Nebraska, OSHA, Workers Compensation and tagged , , , , .

NPR story questions use of pain scale

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NPR ran a story recently about the problems with using the “0 to 10” pain scale that has been shared widely among plaintiff’s lawyers on social media. My law partner, Roger Moore blogged about the pain scale in January and his post made many of the same points as the NPR article.

To sum up, the pain scale isn’t all that helpful to doctors. It may be more helpful for patients to describe the quality of pain like “dull” or “shooting”. It may also be helfpful to talk about how pain can limit activity rather than quantify pain with a number. Some experts believe the use of the pain scale has lead to the over-prescription of opioids.

The pain scale can also be used to discredit injured employees involved in litigation by getting them to overestimate pain to make them look like they are exaggerating symptoms. I always object to pain scale questions when my clients are being examined by opposing counsel. The growing awareness of the problems with the pain scale may lead doctors to move away from using the pain scale and may lead lawyers not to ask questions about the pain scale.

(Sorry, “I read it on Nebraska Workers’ Compensation Watch” merchandise is not available)

 

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 , , .

A tale of two counties in the Nebraska Workers’ Compensation Court

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An ambundance of call center jobs, like the one I did for Ameritrade in Bellevue in the Y2k era, is one reason why Sarpy County has relatively few workers’ compensation claims.

Sarpy County is Nebraska’s third largest county and is nearly three times larger than Nebraska’s fourth largest county, Hall County. But when it comes to cases litigated in the Nebraska Workers’ Compensation Court, Hall County outpaced Sarpy County 66 to 49 in fiscal year 2017 according to the latest report from the Nebraska Workers’ Compensation court.

2017 was not an aberration. Hall County consistently has more workers compensation cases litigated than Sarpy County. A comparison of data from the Nebraska Department of Labor about the two counties provides some indication of why more workers’ compensation cases are litigated in Hall County than Sarpy County.

In Sarpy County, customer service/call centers are one of the jobs with the most openings. In Hall County, material handler and welder are among the jobs with the most openings. A welder or material handler is more likely to get hurt on the job than a customer service representative or call center worker.

In Sarpy County, white collar defense contractors, McCallie Associates and Booz-Allen Hamilton are among the top five employers with job openings. In Hall County, Essential Personnel is the employer  with the most job openings. Essential Personnel is hiring for mostly for blue collar jobs that are more likely to cause injury.

Sarpy County has a more white-collar workforce than Hall County which could explain why fewer injury cases are litigated.  But there are also some other reasons why relatively few work injury cases are litigated in Sarpy County in comparison with other counties. Sarpy County is home to Offutt Air Force Base and many work injuries on the base would be handled under federal workers’ compensation statutes. Werner Enterprises is also headquartered in Sarpy County. However most of their work injuries occur with drivers injured outside of Nebraska. In a case where a Werner driver is injured outside of Nebraska, those cases are litigated in Lancaster County.

In both counties nursing and retail are among the five sectors with the most job openings. Public school districts are the second largest employers in both counties. The similarities between Sarpy County and Hall County speak to increasingly employment in the service sector throughout Nebraska.

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 , , , , , , , , .

The case against “Ghosting” for employees

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Employers are increasingly complaining of employees “ghosting” or leaving suddenly without notice. Temple Law Professor and author Brishen Rogers correctly pointed out on Twitter that employee ghosting is protected the by the 13th Amendment prohibition of slavery. Other commentators have pointed out that employers have been “ghosting” employees for many years and that some turnabout is to be expected as unemployment declines.

Employee “ghosting” is also the flip side of employment at-will. Employers are free to fire you at any time, but you are free to quit your job at any time without notice.

The concept of giving notice before quitting isn’t rooted in any legal requirement. But giving notice before leaving a job can give employees some legal benefits. Providing written notice can provide more protections to employees if done correctly.

Unemployment

In Nebraska, if you quit your job you have to prove you had good cause for the quit to get full unemployment benefits, whereas if you are fired your employer has to prove you committed misconduct in connection with your employment to deny you full benefits. Often when an employee gives two weeks’ notice, an employer will have them stop working before the two week notice period ends. In this situation an employee, for the purposes of unemployment benefits, has been fired. So unless the employer can prove the employee committed some misconduct, then they will receive full unemployment benefits.

Putting notice in writing can be helpful because it explains why you are leaving. Under Nebraska law, there are several reasons deemed by good cause for leaving. Having one of those reasons in a letter could help you receive unemployment benefits sooner.

I recently had an employee who was asked to submit a resignation letter due to alleged concerns about her job performance. My client was smart enough to write down that she would retract her resignation if performance improved. My client ended up winning her unemployment appeal due in part to that letter as it wasn’t clear that she really intended to resign.

Other employment laws

Written notice can also help in other cases. If an employee resigns due to workplace harassment, written notice of a quit would put an employer on notice of the harassment if it wasn’t done so already. Adding in that the resignation would be retracted if the harassment was addressed would also help.

A written notice that an employee is quitting because of a medical condition could prompt an attempt to accommodate that condition under the Americans with Disabilities Act.  I have seen written notice of quits because of medical conditions be helpful in winning benefits in workers’ compensation cases as well.

Giving notice is also helpful to an employee quits a new job for a new job that falls through. Courtesy can help an employee maintain a relationship with an employer and make it easier for an employee to go back to a job.

 

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 ADA, Harassment, Nebraska, Unemployment, Workers Compensation and tagged , , , , , , .