Tag Archives: workers’ compensation

Are plaintiff’s lawyers unintentionally spreading myths about claimant fraud?

Posted on March 18, 2019 by Jon Rehm

The Social Security Administration (SSA) plans to implement rules, that if enacted, would allow SSA to review social media posts by Social Security Disability Insurance (SSDI) applicants and beneficiaries to check for benefits fraud.

Administrative agencies and adjudicatory bodies usually have broad authority to enact procedural and evidentiary changes that can affect the substantive rights of claimants. In the case of federal executive agencies like the Social Security Administration, those rules can be challenged in the judiciary branch and struck down by Congress.

Complaints about social security fraud are evergreen and overblown because of the difficulty in getting SSDI. SSDI benefits became even harder to receive as a result of bi-partisan refo rms signed by President Obama in 2015 that included the repeal of the so-called treating physician rule.

Complaints about social security fraud echo and overlap with complaints about workers’ compensation fraud. Workers’ compensation fraud is rare on the employee side and even the workers’ compensation industry admits that workers’ compensation fraud is at least as much of a problem on the employers’ side as it is with employees.

So why does the trope of the fraudulent disability or workers’ compensation claimant continue to exist? I would argue that the plaintiff’s bar unintentionally perpetuates the myth. Here is the how and why of how I think the plaintiff’s bar perpetuates the fraudulent claim trope.

Any good plaintiff’s lawyer is going to make sure they know about their client’s social media feeds and will warn their clients about social media use. Plaintiff’s lawyers often take this standard advice and publish it on blogs and their own social medial feeds. Whenever a story breaks about an injured worker or disability claimant being caught for fraud with a social medial post, plaintiff’s lawyers reflexively post “See what happens, don’t do that.” But by engaging with these stories, the plaintiff’s bar amplifies stories about claimant fraud which are admittedly rare.

So why do we as plaintiff’s lawyers post cotnent on social media that perpetuate myths about our clients? It’s hard to say, but I have a few theories. The first is there is a pressure for plaintiff’s lawyers to engage on social media. A lot of plaintiff’s attorneys view social media engagement as marketing and outsource marketing to vendors. When plaintiff’s lawyers take a hands off approach to social media, content tends to reflect whoever is actually producing the content rather than the attorney.

If social media posting is viewed as marketing, then from a marketing perspective, attorneys might be afraid to alienate potential clients by directly challenging client assumptions about claimant fraud. If a plaintiff’s attorney posts a generic “Be careful on social media” post, the subtext is “I only represent legitimate claimants.” Plaintiff’s lawyers are trained to frame their cases in a way that appeals to jurors that are skeptical of litigation and those who bring lawsuits. While that approach often works with juries in individual cases, that assumption can amplify those same views if used as part of attorney marketing.

Plaintiff’s lawyers try to do what is best for their clients and practices. Even if plaintiff’s lawyers don’t push back against directly about stereotypes about their clients and practices in their marketing, many of us push back against harmful laws and regulations on a state and federal level. Social media is still a relatively new platform that has given many firms a way to engage with the public in a cost-effective way. We as plaintiff’s lawyers should use this new platform to confront negative stereotypes about our practices rather than unintentionally perpetuating harmful stereotypes.

Could suicide nets be coming to American workplaces?

Posted on March 14, 2019 by Jon Rehm

Coming to a worksite near you?

Stressed out and disaffected white collar workers seem to idealize blue collar work as physically taxing, but not mentally straining. The stress-free blue-collar worker is personified by the character Larry in the classic movie, Office Space.

But in reality, many blue-collar jobs can be every bit as mentally stressful, if not more stressful, than white-collar jobs. The Daily Beast ran an investigative report involving suicide attempts by workers in Amazon warehouses. The mental stress comes from trying to keep up with the fast pace of work.

The complaints of Amazon workers eerily mirror those of Chinese employees of Apple contractor Foxconn, which notoriously installed suicide prevention nets to prevent further employee suicides.

I hear many of the same complaints about stress from about the pace of work from my clients who work in meat packinghouses. A work injury can often worsen the stress of keeping up with production because a physical injury usually makes it harder to do a job. The Daily Beast article profiled one worker who suffered increased mental problems after an ankle injury on the job impacted his ability to keep up with the demands of his job.

Mental stress is part of my many workplaces, but purely mental injuries usually aren’t covered by workers’ compensation laws. For a mental injury to a warehouse worker in Nebraska to covered by workers’ compensation, it would have to be directly related to a physical injury. Mental stress from being unable to keep up with job demands due to a physical injury could be covered.

In Nebraska, certain workers such as police, firefighters and other first responders can collect workers’ compensation for purely mental injuries. But even before the Daily Beast article about extreme mental distress among Amazon employees, me and other workers’ compensation bloggers have questioned why so called mental-mental benefits are limited to first responders. I’ve taken a particular interest in convenience store clerks and other retail employees are often subject to or witnesses of violent crime.

My view is the answer to why so-called mental-mental benefits tend to be limited to first responders is politics. Retail workers and non-unionized warehouse workers don’t have the kind of clout as police officers or firefighters.

First responders deserve mental-mental workers’ compensation benefits because they can be subject to terrible trauma on the job. But other workers can be also be subject to serious mental distress on the job. That stress should be covered by workers’ compensation laws in Nebraska and other states.

What is an accident in workers’ compensation?

Posted on March 4, 2019 by Rod Rehm

Accidents happen is a common refrain. Most people believe that an accident is something that happens suddenly and was caused by carelessness. But nothing is quite that simple in the world of workers’ compensation.

Nebraska law defines accident as happening suddenly and violently, being unexpected and having objective symptoms. Suddenly violently means that an injury 1) happens at a definite time 2) stops employment and 3) the employee stops work.

This definition can cover all sorts of injures that might not be considered an accident by a lay person.

.Examples of such cases are: (1) carpal tunnel from repeated use of hands, (2) rotator cuff shoulder injuries from repeated use of arms above the shoulder, (3) skin conditions from repeated exposure to chemicals, dust or heat, (4) blood clotting from long periods of sitting, (5) heart attack and stroke from unusually heavy exertion, (6) lung diseases from exposure to chemicals, grain dust and cement dust, (7) cancer from exposure to chemical or substance known to be carcinogens (8) death from a work related disease, (9) mental health disease caused by long term pain from a work related injury, disease or condition.

In cases that aren’t thought about as “accidents” injured workers may not be clear in relating their symptoms to their work. There could also be confusion over the exact date of an injury. Some employers may even be confused about what happened – or if they acting in bad faith they may try to discipline an employee for not reporting the “accident” in a prompt manner. Injured workers can end up losing their job and or having their claim denied because they don’t understand what accident means in workers’ compensation law.

Nebraska workers facing such challenges should contact a lawyer if they suffer from a disease or condition from work activity or environment mental factors. You may be entitled to benefits. Nebraska Workers compensation benefits are not limited to sudden accidents.

What is an accident in workers’ compensation?

Posted on February 25, 2019 by Rod Rehm

Nebraska law defines an accident as happening suddenly and violently, being unexpected and having objective symptoms. Suddenly violently means that an injury 1) happens at a definite time 2) stops employment and 3) the employee stops work.

This definition can cover all sorts of injures that might not be considered an accident by a lay person.

Examples of such cases are: (1) carpal tunnel from repeated use of hands, (2) rotator cuff shoulder injuries from repeated use of arms above the shoulder, (3) skin conditions from repeated exposure to chemicals, dust or heat, (4) blood clotting from long periods of sitting, (5) heart attack and stroke from unusually heavy exertion, (6) lung diseases from exposure to chemicals, grain dust and cement dust, (7) cancer from exposure to chemical or substance known to be carcinogens (8) death from a work related disease, (9) mental health disease caused by long term pain from a work related injury, disease or condition.

Nebraska workers facing such challenges should contact a lawyer if they suffer from a disease or condition from work activity or environment mental factors. You may be entitled to benefits becuase Nebraska Workers compensation benefits are not limited to sudden accidents. You may also have a case for wrongful termination if you were fired for reporting a work accident.

Injury cases during a gender transition

Posted on February 21, 2019 by Jon Rehm

A gender transition adds another wrinkle to an injury case

A work injury or injury caused someone else’s negligence can cause many complications. But what happens when an injury case comes up during when the accident victim is involved in a gender transition or has changed genders?

Every injury claim is different. A gender transition raises some unique issues in an injury case, but those issues are manageable and need not hurt a case with good communication between an attorney and client.

Here are a few issues about representing transgender individuals in injury cases that have come up in my experience.

Why is a gender transition relevant to an injury claim?

In short, an injury claimant gives up a lot of privacy when they make a claim. The Rules of Civil Discovery give insurance companies a lot of power to go through a claimant’s medical history. Some studies have shown a relation to spinal fractures and the hormones used in male to female transitions. In a case involving a back injury involving a man changing genders, the insurer may try to pin the cause of a fracture on hormones used in a gender transtion rather than an injury.

Many injury claims involve either a mental injury or a claim for pain and suffering. These claims can open up discovery about a claimant’s mental condition. Some, but not all transgender individuals, suffer from gender dysphoria which is anxiety or mental distress over a person’s gender identity. Again if a transgender individual is claiming mental distress from an injury, an insurer may try to shift that mental distress onto the gender dysphoria rather than the injury.

But many people, whether transgender or cisgender, have some preexisting physical and/or mental health conditions that could complicate an injury claim. Transgender individuals just have some conditions that are unique to them.

Attorneys for insurance companies frequently ask injury victims if they have used another name in the past. This question is asked to discover things like previous accidents, medical care and experience with the legal system. It’s not unusual for women to have a maiden name and a married name. In the case of a person who changed genders, the prior names question can reveal the individual changed genders.

Protecting privacy and dignity in litigation

Just because an injury claimant loses a lot of privacy in litigation, doesn’t mean they lose all privacy. Questions, whether in writing or oral can not be “unreasonably embarrassing”. If question are unreasonably embarrassing, an attorney can move for what is called a protective order to limit questioning. Discovery in an injury case gives insurance companies access to all sorts of information. But not all information about an individual may be relevant in their court case An attorney can file a motion in limine to protect private details about a client’s life, like a gender transition, that might not be relevant to their claim from a jury.

In Nebraska and most states, motions in limine, may not be helpful to claimant’s in workers’ compensation cases because cases are heard by judges rather than juries. In other words, the finder of fact is going to know all sorts of things about a claimant that might not have anything to do with their work injury. In my experience, judges in the Nebraska workers’ compensation court do a good job of screening out irrelevant details in deciding cases. A gender transition may be of little relevance to a workers’ compensation claim.

The importance of a trusting attorney-client relationship

Transgender individuals have unique issues in injury cases, but like any other client a trusting attorney-client relationship is key to a good case outcome. Communications between a client and attorney are almost always confidential. Part of the reason for that privilege is that client’s need to tell attorneys things they wouldn’t tell their co-workers, friends or even family. When it comes to issues of gender identity and gender transition, a workers’ compensation or personal injury attorney needs to know about those issues early in a case so they can effectively advocate for their transgender client. As an attorney, I don’t want to find out for the first time at my client’s deposition that they are undergoing a gender transition Even routine matters like be kept up to date on a name change can help an attorney update medical releases so they can update medical records.

Effective advocacy in an injury claim isn’t just getting a good case outcome, it also means protecting the privacy and dignity of the individual during the litigation process. Transgender clients should feel comfortable communicating about issues with gender identity with their attorney, so their attorney can protect their interests during litigation.

Worker safety vs. civil rights laws ?

Posted on February 18, 2019 by Jon Rehm

A bank teller window protected by bulletproof glass

Recently I noticed that the two bank branches where I bank have implemented security measures that would improve workplace safety for their employees. One bank branch put in a clear glass wall to protect tellers while the other bank branch is locked and requires customers to call at the door to be let in to the bank.

The two banks deserve credit for increasing employee safety, but does increased security at banks raise public accommodation issues?

“Banking while black”, a shorthand phrase describing the denial of service of African-Americans at financial institutions, has drawn media attention recently. Is there a way to reconcile two important interests – workplace safety and public accommodation or civil rights laws — that might be in conflict?

At first glance, I don’t see why increased security at banks should conflict with public accommodation laws.

How security at banks promotes workplace safety

I have been writing about retail worker safety for a few years and bank tellers are particularly vulnerable in bank robberies. A study by the Indiana Department of Labor found that glass barriers were one effective way to protect retail workers, like bank tellers, from violence. Even if a bank teller is fortunate enough to avoid physical injury in a robbery, they are still vulnerable to mental trauma. Mental injuries are particularly troubling because bank tellers, like all workers besides certain workers involved in public safety, have no coverage for purely mental injuries under Nebraska workers’ compensation law.

Workers could bring a negligence case which could be part of the impetus for banks putting in increased security measures at their branches.

But security measures can have downsides. Anybody who has been delayed at a TSA checkpoint can attest to that fact, but security can also raise public accommodation issues.

Public accommodation laws and “banking while black”

African-Americans in Ohio, Florida and Washington have reported being unable to complete financial transactions at banks due to their race. A 40-something professionally dressed white male, like me, shouldn’t have a problem being let into a locked bank branch. It might be different if I were a person of color.

In Nebraska being hassled or refused service by a financial institution on the basis of race would run afoul our state’s civil rights laws. It would also run afoul federal civil rights laws as well as potentially leading to cases for breach of contract and interference with contractual rights.

In the Ohio, Florida and Washington cases, physical entry into the bank branch has not been an issue. The issue has been the inability to complete a transaction despite meeting the requirements of the financial institution such as having an account and or having proper identification. For now, it doesn’t appear that physical security at a bank has been used to deny service based on race. The problem of banking while black appears to be one of applying procedures differently to the detriment of African-Americans based on their race. I hope that lessons learned by banks in cases about applying procedures differently to African-Americans can be implemented into how banks apply heightened security at their branches.

Three “mega” issues with “mega” claims

Posted on February 14, 2019 by Jon Rehm

An increase in driving jobs and use of mobile devices has lead to more “mega” workers’ compensation claims.

The cost of workers compensation insurance and the total number of work injuries has been in a long-term decline as industrial jobs decrease and service jobs increase.

But even as overall claims and costs decline, the workers’ compensation insurance industry is focusing on higher value “mega” claims involving serious or fatal injuries. These claims often involve auto accidents which are made more prevalent by the 1) increase in delivery jobs through online commerce and 2) the expansion of mobile technologies that turn vehicle into mobile offices. (I drafted the first two paragraphs of this post on my IPhone in my car at a car wash)

The increased focus on so-called mega claims will likely bring increased attention to litigation over 1) when an injury arises out of and in the course and scope of employment 2) employee fault and so-called safety violations and 3) fights over how much an insurer/employer should be paid back when they paid workers’ compensation benefits for an injury that was the fault of a third-party. In legalese, this is called a subrogation interest.

Arising out and in the course and scope of employment

For an injury to be covered by workers’ compensation, it has to take place within the time and spatial boundaries of work and the injury has to be caused by a risk related to employment. At least under Nebraska law, the issue depends on the facts of the case. The Nebraska Court of Appeals recently heard oral arguments in a workers’ compensation case involving the survivor of a sheriff’s deputy who was killed in a car accident on his way home from work.

Normally such work would not be covered under workers compensation under the so-called going and coming rule. But in this case the sheriff’s deputy was talking to another deputy who was covering the next shift about a work-related event when accident occurred. The family of the employee argued that since the employee was talking on their cell phone about work with a coworker when the accident happened, that the accident should be covered by workers compensation. In that case the trial court disagreed.

I agree with the family. Mobile technology is changing the scope of what constitutes the workplace. It also changes expectations for when an employee is expected to be working. Covering employees injured offsite and/or off the clock while using mobile technology by workers compensation adapts workers compensation to a modern workplace.

Safety violations

Using mobile devices in moving vehicles poses safety risks. Employers have the discretion to make reasonable safety rules. In some cases, violation of a safety rule gives employers to paying workers compensation in Nebraska. Many other states have similar rules. In a recent Virginia case, serious injuries to a bus driver injured in a motor vehicle accident were found not to be covered by workers’ compensation because the driver was violating an employer rule requiring that he wear a seat belt. A death or serious caused by a worker who was texting or emailing while driving in violation of company rules on would be vulnerable to being dismissed in Nebraska.

Third Party cases

Many cases involving auto accidents on the job involve the negligence of a third party that is neither the fault of the employee or employer. In such a case, the employer has a right to be paid back for workers’ compensation benefits out of any recovery from that third party minus some attorney fee. This is called a subrogation interest. Nebraska law allows a court to equitably determine the amount of the subrogation interest.

But Nebraska courts have taken a view of equitable subrogation in third party cases that is favorable to employers. The fact that an employer deceased the value of the personal injury case by aggressive defense of the workers’ compensation claim does not given courts the authority to reduce an employer’s subrogation interest. Nebraska courts have also held that giving employers robust repayment rights in third party cases effects the purpose of the workers compensation act because it encourages the prompt payment of benefits.

Federal legislation may make it easier for injured workers to change jobs

Posted on February 7, 2019 by Jon Rehm

A Jimmy John’s franchise subjected sandwich makers to non-compete clauses

Recently introduced federal legislation could make it easier for injured and disabled workers to switch jobs without fear of having to fight a non-compete agreement.

The Freedom to Compete Act, introduced by Florida Senator Marco Rubio, would ban non-compete agreements for all employees deemed to be non-exempt employees under the Fair Labor Standards Act. Non-exempt employees tend to be hourly and blue-collar workers.

The Freedom to Compete Act was prompted by reports of low-paid hourly workers being subjected to non-compete agreements. Most notably, a Jimmy John’s franchise in Illinois subjected sandwich makers to non-compete agreements.

In October, I wrote about how the threat of a non-compete agreement may deter an injured worker from seeking work with another employer that is easier for them to do physically.

Non-competes in Nebraska

Nebraska outlaws restraints of trade by statute and by case law. But non-compete agreements can be enforceable if they are reasonable in scope – for a limited time and geographic area – and ancillary to a contract of employment.

The general test of whether a non-compete is enforceable in Nebraska is that it is 1) not harmful to the public 2) not greater than necessary to protect employer’s legitimate interest and 3) not unduly harsh or oppressive to employee.

Courts in Nebraska tend to focus on whether the compete is too broad to protect the employer’s legitimate interest. A non-compete would likely to be held to be unenforceable under this clause if the employee had no personal or business contact with customers or prospective customers, didn’t know or have access to confidential information, has no skills or knowledge different than what they would have acquired in another business and the employer had no trade secrets regarding their industry.

The issue of whether a non-compete is unduly harsh is a separate issue. My feeling is that a good argument could be made that changing jobs as a way of essentially self-accommodating a work injury would fall into that category. I believe the Zweiner v. Becton-Dickinson East case would bolster such an argument, but litigation is almost always uncertain and it can be costly. An injured worker looking at the prospect of a workers’ compensation claim may not be willing to take on a non-compete fight as well.

Other questions about Freedom to Compete

Other commentators have pointed out that Freedom to Compete could make already contentious non-compete cases even more contentious by turning them into employee classification cases.

Back in October, I wrote that non-competes need to be fixed legislatively. Some states have began introducing legislation to further limit non-compete agreements, I question whether Freedom to Compete would pre-empt state laws on non-compete clauses for white collar FLSA exempt employees. I wonder if Freedom to Compete isn’t a federal effort to head off state level reforms and even federally preempt some favorable state laws on non-compete clauses for white collar employees..

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: workers’ compensation

Could suicide nets be coming to American workplaces?

What is an accident in workers’ compensation?

What is an accident in workers’ compensation?

Injury cases during a gender transition

Worker safety vs. civil rights laws ?

Three “mega” issues with “mega” claims

Federal legislation may make it easier for injured workers to change jobs

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