Tag Archives: Workers Compensation

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

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

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

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

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

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

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

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

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

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

This entry was posted in Nebraska, Workers Compensation and tagged , .

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

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

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

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

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

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

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

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

This entry was posted in Nebraska, Workers Compensation and tagged , .

Fee Schedules: A defense of bureaucracy in workers compensation

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Former New Jersey Governor Chris Christie

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

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

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

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

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

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

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

This entry was posted in fee schedule, Nebraska, Workers Compensation and tagged , , .

Lincoln skywalks promote safety in all seasons

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Lincoln’s Skywalk system helps prevent slip and fall injuries in the winter.

As snow and ice return to Lincoln, discussions between downtown Lincoln businesses and city officials about the future of the Skywalk system become even more important to workplace safety.

The skywalks once served as an indoor mall in downtown Lincoln connecting stores, parking garages and hotels. (My mom worked at Miller and Paine in the 1970s and 1980s in a building that now houses Nelnet) The skywalks and buildings served by them mainly serve office workers in downtown Lincoln. I frequent the skywalks when I have work obligations downtown. Many major downtown employers, such as Nelnet, subsidize employee parking in various downtown garages. Employees can access those garages through the skywalks.

Downtown parking garages can also be accessed from the street. But with winter comes ice and the risks of slips and falls. The question becomes who would be responsible for a slip and fall when an employee is walking to and from a company assigned and subsidized parking spot off-site. Arguably a slip and fall in this situation would be covered under workers’ compensation under the “parking lot” rule articulated in Nebraska in Zoucha v. Touch of Class Lounge. It’s also possible that an employee injured while walking to and from employer subsidized public transportation, could have a workers’ compensation claim as well.

In theory, indoor walkways like the skywalk system would reduce the chances of slip and fall accidents. But from a recent observation, maintenance is lacking some parts of the Skywalk. I observed a leaky roof that lead to wet carpet on an internal walkway in the US Bank building in August.

I recently represented a downtown office worker who feared being assaulted walking to her parking spot late at night. Skywalks can help reduce the risk of employees being assaulted on the way to their cars.

My view is that downtown business owners and the city need to work together to maintain the skywalk system in the interest of worker safety.

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

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 , , , , .