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.
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.
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.
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
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.
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:
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.
Walking off-the-job in mass or mass call-ins without union approval or without a union period is sometimes known as a “wildcat strike.” But while the LEA was correct in stating a coordinated sick out by teachers is illegal in Nebraska, most private sector employees have the right to walk off the job due to safety conditions under certain circumstances.
Some workers are still fortunate enough to enjoy union representation. If you are one of those workers, join your union and get involved in your union. Unions make the workplace more democratic and allow for employee input, but unions work best when workers get involved. One of my pet peeves is listening to clients or potential clients telling me “the union doesn’t do anything.” Some unions are better than others, but even a weak union gives most employees better benefits and more job protections than they would be entitled to otherwise as an at-will employee.
Public sector labor law reform in Nebraska?
Public sector employees cannot strike in Nebraska. Nebraska law is clear on that issue unlike more ambiguous laws in West Virginia, Oklahoma and Arizona that had teacher strikes in 2018. Nebraska law also holds teachers and other employees can’t engage in work slow downs or sickouts. In fact it is a crime to even advocate or advise public sector employees on workplace strikes and slowdowns and to support strike funds. While Nebraska laws on public sector strikes may be vulnerable to some First Amendment challenges, public sector strikes and work slowdowns remain a very risky proposition for participants.
Nebraska is also one of the few states that hasn’t adopted charter schools which are opposed by teachers’ unions. I’m not sure that the Nebraska State Education Association, the union representing teachers in Nebraska, would want to risk alienating support for public schools with proposals that could seem radical to many Nebraskans, including teachers.
But ultimately increased labor militancy among teachers and other public sector workers could help preserve the role of bargaining for public sector employees. In 2011, some in the business community sought to weaken public sector unions. That effort ultimately failed. I think a newly energized labor movement among teachers makes it more likely that future efforts to weaken public sector unions in Nebraska will fail as well.
Many white-collar employees exercise at the beginning of the day before going to work. But many blue-collar workers are required by their employers to exercise or stretch at the beginning of their shifts.
In my view, required workplace stretching or exercises creates many issues in workers’ compensation and employment law.
Hurt while stretching at work
If a worker is injured while doing employer-mandated exercises, that injury would be covered by workers compensation. The deeper issue about employer-mandated stretching and exercise is why employers mandate it in the first place. Stretching is thought to reduce the risk of musculoskeletal injuries which would be covered by workers’ compensation. But research is not entirely clear as to whether stretching reduces the risk of injury in the workplace.
Workplace stretching, ergonomics and wellness programs
Workplace stretching supporters also support employers using early intervention to address musculoskeletal injuries. But many employers don’t follow the advice offered on workplace wellness blogs. I have many clients, particularly in the livestock and meatpacking industries, that complain about soreness from overuse injuries. The response is often less than supportive from management. They are told that pain is just part of the job.
Workplace exercise and stretching and the ADA
Workplace exercise programs raise an immediate concern for workers with physical disabilities. Sometimes disabled workers are unable to complete stretches or exercises because of their disability. A refusal of to do these stretches could be construed as a refusal of work duties, so employees may feel pressured to complete the exercises and risk injury.
Sometimes employees can’t afford to go the doctor or can’t easily access medical care. I think an employee can still ask for an accommodation based off old restrictions or even on their own. But to be blunt, employers don’t always take self-reported restrictions seriously. That is often the case with courts as well if those self-reported restrictions lack basis in the medical records.
But litigation is time consuming and expensive. So an employee who is forced to do stretches that aggravate an old injury or health condition should try to work with a doctor and employer, if possible, to either get excused from the exercises or to get the exercises modified.
The presidential election and confirmation hearings for Amy Coney Barrett have focused attention on potential changes to federal regulatory agencies and the federal courts. Narratives about regulatory agencies and courts often pose Democrats as pro-worker and Republicans as anti-worker. But the EEOC enacted the wellness program regulation during the Obama administration as part of the Affordable Care Act. Conservatives often argue against deferring to regulations issued by executive agencies based on separation of powers arguments. But in this case, workers used a separation of powers argument to strike down an anti-worker policy.
I saw something new in the world of workers’ compensation last month; a “work restriction agreement” between an employee and a doctor. The agreement raised my eyebrows when I first saw it and it raised my eyebrows again when I dug it up to write this post.
The more I thought about this agreement, the more I saw the handiwork of a nurse case manager. Nurse case managers have all sorts of advantages over injured in workers in a workers’ compensation claim. In my mind, this agreement really seemed like running up the proverbial score.
So why did this agreement rub me the wrong way?
Trust and stigma in workers’ compensation
When I saw the agreement, I thought about the agreements that doctors often make patients sign in order to receive opioid pain medication. To some extent those agreements are well-intentioned because they can inform patients about how to take medication properly. But the agreements have been criticized for undermining the doctor-patient relationship and stigmatizing users of prescription drugs as potential addicts. Injured workers are equated with drug addicts.
Like drug addiction, issues about doctor-patient trust and stigma are major issues for injured workers. Many injured workers refuse to claim workers compensation benefits out of fear as being stigmatized as freeloaders looking to “milk the system”. But even if workers overcome that stigma and claim benefits, most workers are surprised to find how little privacy they have regarding their health history once they claim benefits.
The role of the nurse case manager
One of the most visible examples of the relative lack of privacy in workers’ compensation claims is the nurse case manager. A nurse case manager is usually a nurse hired on behalf of the workers compensation insurer, but it can be someone employed directly by your employer. This nurse case manager will suddenly pop up in the examination room when you visit your doctor or a doctor about a work injury.
We tell our clients to tell that nurse case manager to scram (politely of course). That might be less of an option if the nurse case manager works at your company and is more or less in management. An employee may feel pressured to allow a company nurse case manager in an exam room out of fear of losing their job or being disciplined. Nebraska law makes it illegal for employers to retaliate against employees for claiming workers’ compensation. I’ve never seen a case related to an employee telling an in-house nurse case manager to leave an examination room, but it could be an interesting case.
But even if you can get the nurse case manager out of the exam room, you can’t stop a nurse case manager from talking with your doctor privately. So, what is it that the doctor and the nurse case manager talk about? Oftentimes it’s whether an employee can return to work. That’s where these “work restriction agreements” come into play.
How the work restriction agreement works and can work
I think nurse case managers are driving the bus on “work restriction agreements.” Some doctors like nurse case managers. I think part of reason some doctors like nurse case managers is oftentimes a nurse case manager will have access to written job descriptions that help doctors to tailor work restrictions.
The work restriction agreement I saw incorporated a written job description. The agreement contained a provision that the workers work restrictions were just exactly as described by the doctors note. This would limit the employee’s ability to testify to the extent of their own restrictions at trial.
In addition, the agreement contained a provision that the employee would refuse work that exceeded her restrictions. Interestingly enough, the agreement created no requirement that the employer not ask or force the employee to exceed their stated work restrictions. Overall the document created obligations for the employee, but none for the employer. (If this sounds like collusion, it is and you can read more about why this collusion is usually permitted here.)
Given the one-sided and legalistic nature of the “work restriction agreement”, I am not surprised it showed up in cross-examination like questioning from an employer’s lawyer in a workers’ compensation deposition. The nurse case manager was essentially helping to create what amounts to attorney work-product to be used in a workers’ compensation case. (It could also be used in an employment law claim as well.) But while a “work restriction agreement” is a fairly blatant effort to create evidence, nurse case managers have more subtle tactics.
Of course, insurers have more blunt tactics to influence medical evidence – they pay the bill. I remember sending a questionnaire out to a doctor in a case because their dictation wasn’t enough to help prove my client’s case. I was bluntly told by clinic staff that since “workers compensation already paid the bill” that they saw no reason why they needed to fill out additional paperwork. Paying the bills gives insurers a lot of influence and make their nurse case managers seem a lot more persuasive than they would be otherwise.
Many nurse case managers also have long-standing relationships with doctors which leads doctors to trust nurse case managers. It seems nurse case managers aren’t happy with their advantages and are seeking to further their advantage over injured workers through the use of forms like “work restriction agreements” that further stigmatize injured workers.
The workers’ compensation insurance industry likes to talk about patient advocacy. But after a certain point in a claim, injured workers are often left hanging by insurance companies and the nurse case managers they hire to manage employee medical care.
Workers left in a lurch by insurers are often confused or ignorant about how to proceed in a claim. And surprise, surprise, insurers use this ignorance and confusion against injured workers.
Here are some common scenarios when injured workers get ghosted by insurers or nurse case managers in workers’ compensation claims.
If an employee seeks treatment for pain and that treatment is related to the injury, sometimes employers will argue that they don’t have to pay for that treatment. Nebraska Workers’ Compensation Court Rule 50 holds an employee is stuck with the doctor they chose at the beginning of the claim unless 1) the defendant denies medical care or 2) the parties agree to a change or 3) the court orders a change.
What constitutes a denial of care is a crucial question. Employers have an affirmative and ongoing duty to offer medical care to injured workers. The safest route for an employee is to ask the insurer to approve medical care. But that isn’t always possible if employees don’t have that information or adjusters don’t respond to inquiries. Insures also tend to ignore injured workers who don’t have a lawyer.
Arguably, not offering medical care is a denial of compensability, so an employee can chose to any provider doctor and have those bills paid. An ongoing and affirmative duty to offer care should mean an employer can’t get out of paying medical bills just because the stopped communicating with you about your claim. However, getting medical bills paid in that situation will probably involve hiring a lawyer and going to court. Many employees are intimidated by that process.
Why employers should offer you medical care
Employers have good reason to offer ongoing medical care. First of all, an injured worker can lose out on disability benefits if they decline medical care Neb. Rev. Stat 48-120(2)(c). By offering medical care, an employer can also maintain control over medical care. A recent case provides a good example of the protections that employers are entitled to if they offer medical care.
The Nebraska Supreme Court held in Rogers v. Jack’s Supper Club that an employer was not responsible for paying for bills incurred for treatment in Florida for an employee who moved from Nebraska to Florida. The court held so because the employee didn’t ask to formally change doctors from the court or the employer.
I think Jack’s Supper Club is a harsh result. I believe Neb. Rev. Stat. 48-120(6) gives judges broad latitude to order changes of doctors under Rule 50. But in that case the defendant actually offered medical care to the injured employee. Arguably, the defendant in that case, met their affirmative duty to offer medical care and did not deny compensability.
Aren’t they supposed to pay me something?
While employers have a duty to offer you medical care for a work injury, their duty is less clear when it comes to paying permanent disability benefits. Again, insurers and nurse case managers tend to disappear after surgical care ends. Usually when a surgeon releases an injured worker from care they are deemed to be at maximum medical improvement or MMI.
I’ve written quite a bit about employers/insurers short change employees by ending payment of temporary disability and delaying payment of permanent disability. But that squeeze or delay presumes an employee actually gets paid permanent disability. In order to get paid disability for an injury to a specific body part, a doctor generally needs to give an impairment rating. But usually someone needs to ask for and pay for an impairment rating.
Often times insurance types just don’t ask for the impairment rating. Once they insurer gets an impairment rating, they have 30 days to pay the value of the impairment rating to an injured worker. But they don’t have a spelled out duty under Nebraska law to ask for an impairment rating the same way they have a duty to offer medical care.
I would argue the beneficent purpose of the Nebraska workers’ compensation act would give insurers a duty to ask for an impairment rating. But it might be up to the Unicameral to impose that duty on insurers.
Do I have an impairment rating for my injury?
If you had surgery, you almost certainly have an impairment rating. That impairment rating is likely worth at least a few thousand dollars of tax free money. If you have had surgery there is a reasonable possibility you will need some medical care in the future. Impairment ratings and future medical care cost insurance companies money. One reason that insurers and employers ghost injured workers is that they are hoping they won’t make additional claims or ask for payment of benefits that they are owed.
White House Economic Adviser Larry Kudlow (photo credit to ABC News)
Congress is still working to extend enhanced unemployment benefits in response to the COVID-19 pandemic that expired in July. I believe the debates over extending unemployment benefits parallel issues debated in the world of workers’ compensation.
White House economic adviser Larry Kudlow proposed capping unemployment benefits at 70 percent of salary. Kudlow believes this rate of payments doesn’t discourage work. It so happens that workers compensation benefits in Nebraska, and most other states, are limited to two-thirds of an employee’s average pay. So under Kudlow’s assumption, workers compensation benefits shouldn’t discourage work.
But I doubt being confronted by their own logic is going to change insurance company practices and attitudes. Insurers and self-insured will push employees to come back to work as soon as possible even if it means commuting long distances or relocating to perform meaningless work. Some employers also like to force injured workers to perform volunteer work rather than receive workers’ compensation benefits.
Supplemental unemployment and temporary partial disability
The Republican plan to cap unemployment benefits at 70 percent of wages requires states to individually calculate benefit levels for each clamant. Democrats argue this would create administrative hassles for state agencies determining unemployment benefits. Democrats argue that a flat supplemental rate is simpler to administer.
The dilemma of supplemental unemployment mirrors the dilemma of temporary partial disability or TPD. Employees are entitled to TPD when they are working for less money than they were earning before accident. TPD is meant to make up the difference between the two wage rates.
Paying temporary partial disability benefits also crates administrative hassles because it requires close cooperation between HR departments and insurance companies. Often times the difficulties of paying temporary partial disability benefits means that workers don’t receive temporary partial disability benefits.
