Tag Archives: workers’ compensation

Bill would eliminate workers’ compensation squeeze

Posted on February 4, 2019 by Jon Rehm

An Omaha senator seeks to limit or end the time many injured workers in Nebraska receive no workers’ compensation benefits due to insurance companies unfairly interpreting Nebraska case law about when payment for temporary disability benefits end and when payment for permanent disabiliy begins.

LB 526 introduced by State. Senator Mike McDonnell would add language to Neb. Rev. Stat. §48-121 that would continue temporary disability until the later of a) any permanent disability as measured by permanent impairment for a scheduled member disability has been determined or, in the event of a claim payable under a loss of earning power basis when a loss of earning power evaluation is complete or b) 30 days after the employee has been given notice of termination.”

The bill also requires employers to provide copies of evidence used to end temporary disability and give the employees the right to a medical examination at their employer’s expense in certain circumstances when temporary disability payments are halted.

Our firm strongly supports this new bill. Roger Moore wrote a good post in 2015 about the human cost of the temporary-permanent squeeze. Last year I wrote a post about how the squeeze came about through case law.

The argument underlying the squeeze is that temporary disability ends when a doctor states a worker has plateaued medically. That means temporary disability benefits stop. But permanent disability has needs to be ascertained before permanent disability benefits start. This could mean waiting for a permanent impairment rating or it could mean waiting for an FCE, having a doctor endorse the results and then having a vocational counselor determine disability. This can take weeks or even months. If an employee isn’t working that means weeks or months without income. I think allowing insurers to exploit the gap between temporary and permanent disability is an incorrect reading of the law because doesn’t effectuate the beneficent purpose of the Nebraska Workers’ Compensation Act to pay benefits in a timely manner to injured workers.

I also like the notice provision of the legislation. Once an injured worker starts receiving temporary disability benefits, they have some expectation that they will continue which would arguably create a constitutional property interest in continued receipt of those ongoing workers’ compensation benefits. Ending those benefits with no notice or explanation would arguably violate due process.

Critics of the legislation may point out there are cases involving multiple scheduled members that can also be paid on a loss of earning power basis which could cause uncertainty about the period of when temporary disability should continue. In such cases I believe that prompt payment of scheduled member impairments helps to eliminate the gap issue. However impairment ratings under the AMA 6^th may undercompensate injured workers and be less likely to address the gap issue.

Our firm encourages our clients and others in Nebraska to contact their state senators and tell them to support LB 526. You can find out who your state senator is here and find their contact information here.

Nebraska looks to limit debt collection in workers’ compensation claims

Posted on January 31, 2019 by Todd Bennett

Legislation in Nebraska seeks to protect injured workers’ from aggressive debt collection tactics

When an employer or insurer denies a workers’ compensation claim, debt collectors can add additional insult to injury by attempting to collect on unpaid medical bills in the claim. This problem for injured workers is particularly serious in Nebraska.

LB 418, introduced by State Senator Machaela Kavanaugh of Omaha, would solve this problem.The bill states ‘No collection agency shall attempt to collect a debt if a case is pending in the Nebraska Workers’ Compensation Court and the debt is alleged to be subject to’ the workers’ compensation law pertaining to fee schedules and payment requirements by employers.”

This is a needed respite for injured workers in Nebraska for many reasons. First, the legislation solves the problems of civil courts not delaying collection cases where the unpaid bills are part of a workers’ compensation cases. Collection actions in civil court about workers’ compensation cases can also raise jurisdictional questions which would be clarified by this legislation.

Second, assuming an injured worker prevails in obtaining an Award in their disputed workers’ compensation case, if they have already been sued and forced to pay the full price of the medical charges in addition to paying the court filing fees and attorney fees to the collection attorneys, they cannot then recover their money paid to the collection agency. This proposed bill will rectify this situation and help injured workers alleviate the stress and financial crisis they face.

Finally, medical debt collection practices are very aggressive in Nebraska because of inexpensive filing fees in county court. An investigation by ProPublica in 2016 and 2017 showed Nebraska courts handle nearly 80,000 collection actions involving amounts as low as $60. In similarly-populated New Mexico where court filing fees are higher, only 30,000 debt collection suits were filed. One of the biggest collection agencies, Credit Management of Grand Island, was responsible for nearly 30,000 of those lawsuits. Debtor’s exams are quite common. If an injured worker misses the debtor’s exam, they can face being jailed. According to Pro Publica, one Nebraskan was jailed over missing an debtor’s examination on a $100 debt.

Our firm encourages our clients and others in Nebraska to contact their state senators and tell them to support LB 418. You can find out who your state senator is here and find their contact information here.

Mold on the job: not just workers’ compensation

Posted on January 17, 2019 by Jon Rehm

Mold doesn’t have to be this obvious to be harmful in the workplace.

Teaching is not thought of as a hazardous job, but 120 teachers in Stamford, Connecticut have filed workers compensation claims due to mold exposure that effects half of the buildings in their district.

Mold is a relatively common hazard for white collar employees. When mold infests a building, it is common to have many employees affected. Mold is sometimes visible other times it can be hidden in insulation. Mold exposure is typically thought of leading to hayfever like allergic symptoms, but it can also lead to symptoms like chronic fatigue, irritable bowel syndrome and weight gain. About 25 percent of people are especially sensitive to mold and that sensitivity can be tested for by doctors.

In Nebraska, an employee just needs to show that an occupational factor or factors were a contributing factor to the injury. An employee exposed to mold in Nebraska should be able to collect workers’ compensation benefits for mold exposure even if they had pre-existing allergies or mold sensitivity. But other states have more stringent causation standards, so it could be harder to receive workers’ compensation benefits for mold exposure in those states.

The mass mold exposure by teachers in Stamford, Connecticut raises many interesting legal issues outside of workers’ compensation.

Challenges of collective action in the workplace

The first issue is the question of collective action when 120 employees are injured by a common hazard. The teachers are fortunate to be represented by a union. A union can be helpful in accommodating work injuries and helping employees gather information that can prove their workers compensation case. In a case of mold exposure, it is important to gather information about mold levels so doctors have sufficient foundation to relate symptoms to mold exposure. A union is helpful in getting such information.

But public sector unions are under attack by recent and upcoming Supreme Court litigation. The National Labor Relations Act (NLRA) gives nonunion employees some right to act in a group or collective manner about the terms and conditions of their employment. But that right may have been limited by the Epic case decided by the Supreme Court at the end of the 2018 case.

Fortunately claiming workers compensation is a protected activity in most states. That means employees facing a common cause of injury would be protected from retaliation for pursuing workers compensation claims. Some states, like Nebraska, also have whistleblower statutes that would protect employees from reporting hazardous work conditions.

In cases where many people have suffered a common harm, they can file a collective or class action case. I don’t know if Connecticut allows for such claims in workers compensation. But a collective or class case in workers’ compensation could be a simpler and less epxenseive to handle workers’ compensation cases involving mass mold exposure.

Third party claims

Collective or class litigation is generally allowed in cases of mass negligence. Fault usually doesn’t matter in workers compensation, but if a third party is at fault for a work injury the employee (and in Nebraska the employer as well) can sue that third party. A third-party case usually gives an employer some right of subrogation that allows them to be repaid some of what they paid the employee in workers’ compensation benefits.

In a case of mass mold exposure employees and employers could be looking to sue a landlord or builder for negligent construction or maintenance. But if s third party didn’t cause the injury, employees are stuck with defined workers compensation benefits and employers have no hope of being repaid for workers compensation benefits they paid to employees.

The downside to s third party claim is that they usually require more expense to prove negligence. In my experience handling individual mold exposure workers compensation cases, the value of the claims usually would not justify the expense of third-party litigation. But if enough employees are joined in a case, it would make sense economically to pursue a negligence case.

Nebraska Chamber of Commerce bemoans decrease in workers compensation costs

Posted on January 7, 2019 by Jon Rehm

Anti-worker changes to Nebraska workers compensation could be on the legislative agenda

True to my prediction in October, in an email the Nebraska Chamber of Commerce is bemoaning a 22 decrease in workers’ compensation costs in Nebraka over the last five years

These lamentations may turn into legislation to shift the costs of work injuries onto workers, Medicaid, Medicare. Social Security and private health insurance as the Nebraska legislature convenes this week.

I am referring to the results of the 2018 Oregon Workers’ Compensation Premium ranking which show that Nebraska and Iowa essentially changed spots from the 2016 study. According to the study, Iowa’s workers’ compensation premiums are slightly lower than Nebraska’s. Iowa enacted anti-worker changes to their workers’ compensation laws in 2017. Iowa Governor Kim Reynolds, who signed the anti-worker reforms, was criticized for accepting a plane ride to an Iowa State Cyclones bowl game from workers’ compensation claims administrator Sedgwick.

Overall, Nebraska remains a friendlier legal climate for business than Iowa, according to the pro-business Institute for Legal Reform. Nebraska ranks 7^th while Iowa ranks 13^th according to the last study.

Business interests like to gripe that workers’ compensation costs cause business to leave state’s with high costs. But the same Nebraska Chamber of Commerce griping about workers’ compensation costs in Nebraska is also complaining that there are more jobs than workers in Nebraska. Lack of jobs isn’t a problem in Nebraska like it might be in other states.

Workers’ compensation protects injured workers. In Nebraska the cost of this protection has declined for business and has not led the state to lose jobs. There are no good reasons to reduce workers’ compensation benefits in Nebraska.

A quarter-step forward but two steps back on fee scheduling air ambulance charges in workers compensation

Posted on January 3, 2019 by Jon Rehm

Congress may have implemented a partial legislative fix in response to a growing number of state and federal court decisions, the most recent out of the 4^th Circuit Court of Appeals, holding federal law regulating aviation preempts workers’ compensation fee scheduling of air ambulance bills.

The FAA Reauthorization Act authorized the Secretary of Transportation to appoint an advisory committee to suggest rules about charges for air ambulance services. But this “fix” may actually give air ambulance companies more power to avoid having their charges “fee scheduled” under state workers’ compensation laws.

The main controversy about air ambulance charges is that users, including injured workers, can be stuck with paying the difference between what insurance paid and what is billed. In workers’ compensation, when a provider accepts the “fee schedule” then an employee can not be billed further by the medical provider.

But since many courts hold that a state cannot regulation air ambulance charges, state fee schedules do not apply to air ambulances in that situation. This is because when a state law conflicts with a federal law, the federal law preempts the state law. Charges for air ambulances are often in the tens of thousands of dollars because of the cost of helicopter flight.

On a negative note for workers, the fact that the Department of Transportation is issuing rules regarding air ambulance charges could strengthen the case that the regulation of air ambulance expenses preempt state workers’ compensation fee schedules.

In another downside for workers, the air ambulance industry will get three members of the advisory board that will be helping to draft the rules, while there will be one “consumer representative” as well as two other representatives generally representing the health insurance industry. There is a chance that consumer interests could get short-shifted by the Department of Transportation.

One upside for workers is that the legislation indicates that it should breakdown air ambulances expenses between transportation and non-transportation expenses. Non-transportation expenses could be more likely to be subjected to fee schedules which would reduce the cost of air ambulance services.

Recent case law would indicate there was an emerging majority view that the fee scheduling of air ambulance charges under state workers’ compensation laws would be preempted by federal law. The 4^th Circuit Court of Appeals upheld a federal court in West Virginia that held that state regulation air ambulance charges would be preempted by federal law. The 4^th Circuit joined the 10^th Circuit, 11^th Circuit and courts in Florida, Kansas, Kentucky, North Dakota, Texas and West Virginia in holding that workers compensation fee scheduling of air ambulance services are preempted by federal law.

Three things disturbed me when I read over the recent 4^th Circuit decision and the West Virginia federal decision it upheld. The first thing that bothered me was any lack of discussion by the court about how fee schedules fit into the beneficent purpose of workers’ compensation laws. Legal analysis oftentimes requires balancing of different interests, but there was no more than cursory balancing of interests in the latest air ambulance case.

Fee schedules were generically described as a “regulation” in the most recent air ambulance case. The deregulation of air service was described by the District Court as an unvarnished good. Recent press coverage has demonstrated how business interests have worked to influence the federal judiciary. The recent air ambulance cases show a strong anti-regulatory bent and how that influence may manifest in court decisions.

Finally, the District court upheld a contracts clause challenge to state workers’ compensation fee schedules. I don’t know if the contracts clause argument would have succeeded without the pre-emption argument, but the contracts clause has historically been used to strike down workplace safety and workplace rights laws. As a plaintiff’s attorney, I don’t like seeing the contracts clause being used to weaken workers’ compensation laws. Again, this could show how business interests are influencing the federal judiciary.

But if Congress has legislated on air ambulance fees and the DOT will be regulating the area, there is some possibility that Congress or the DOT could change those rules and regulations in a way that would help workers, by say, ruling that air ambulances have to accept workers’ compensation fee schedules if one is in place. Ideally air ambulances would be excluded by Congress from the definition of common carrier as argued by proponents of the West Virginia fee schedule for air ambulances.

Talking points for injured workers who want to see their own doctor

Posted on December 10, 2018 by Jon Rehm

Talking points for employers looking to undermine rights of injured workers to pick their own doctor

I was sitting in a conference call when I screen captured the email that is the photo for this post.

The email came from an occupational medical clinic in Omaha. It used the occassion of an updated doctor choice form from the Nebraska Workers Compensation court to distribute talking points for management when injured workers balk, rightly, at being sent to an occupational medical clinic.

Injured workers have the right to pick their own doctor in Nebraska. But that doesn’t mean that the insurance industry and self-insured employers aren’t going to try to control medical care to their advantage. Insurance companies spend money on “nurse case managers” and self-insureds usually have in-house nurse case managers, who in my view, try to persuade doctors to write medical records and reports that are favorable to the employer. The use of occupational medicine or “occ, med,” clinics is another tactic used by emplyoers to get favorable outcomes for themselves in workers’ compensation claims.

These talking points overcoming employee objections to going to an occ, med. clinic are an example of how employers/insurers try to work around rules that allow injured workers to see theiir own doctors in Nebraska.

I am going to break down these talking points one by one.

1.“We want the best care for you.” If an employer wants the best care for their employees, it would stand to reason they would let the employee go to a doctor who has treated the employee previously and knows their medical history. Treatment would be more effective and efficient without having to re-invent the wheel with a new doctor.

A lot of injured workers end up at occupational health clinics because they don’t have a family doctor because they don’t have health insurance. If a company doesn’t offer affordable health insurance, I would question whether the company really wants what is best for their employees.

2. See you right away – If the injury is acute, an employee will be sent to the emergency room rather than an occupational medical clinic that is more or less an urgent care clinic. While there can be delays in getting to see a family doctor, many family doctors or general practitioners will hold back appointments for urgent cases like work injuries. Injured workers need to be assertive with medical office staff in insisting that they be seen that day.

Of course, this point is moot if an employee doesn’t have their own doctor. See the previous paragraph. That’s why I support the initiative to expand Medicaid in Nebraska.

3.You don’t have to pay if you go to an occ. med. clinic – Under the Nebraska Workers’ Compensation Act, an employee doesn’t have to pay out of pocket for medical care – period – it doesn’t matter who they see. There is an element of truth that some doctors don’t accept workers’ compensation insurance. But if the case requires a referral to surgeon, that surgeon will almost certainly accept workers’ compensation insurance.

By the way, if an employee does get stuck at an occ, med. clinic and they get a referral for a surgery, they can pick their own surgeon even if the employee agreed to let the employer pick the doctor at first.

4. You have to go to this clinic to get drug tested clinic anyway – This isn’t so much a talking point as it is an assertion of power by an employer. It’s a thinly veiled threat that if the employee doesn’t go to the cliinic the employer wants, then they are going to be in trouble. The use of occupational health clinics to perform mandatory post-injury drug testing is a way from employers to cleverly work around Nebraska law on doctor choice under the cover of state and federal law about drug testing. Employee drug testing is as much about employers asserting control over employees as it as about employee safety.

OSHA regulations have recently been revised to allow employers more clarity — or latitude — to drug test emplyoees after a work injury. I will post on this in the near future, but take a look at this post for now,

In short, some employers are going to do their worst to cajole and coerce injured workers into undermining their workers’ compensation case by not letting employees pick their own doctors. Employees in such a situation ought to call a lawyer to get advice and help with their workers’ compensation case.

Indefinite suspensions are employer ghosting

Posted on December 6, 2018 by Jon Rehm

True fact stated: Millennials didn’t invent workplace “ghosting”

Employee “ghosting”, or employees quitting without notice, has been a hot topic among HR “influencers”. This trend seems to be blamed on the usual suspects of millennials and the internet.

But more thoughtful commentators have argued employers bear some of the blame for employee behavior through harsh application of employment at-will. One particularly nasty example of employer “ghosting” is the indefinite suspension.

This form of employer ghosting is well-established enough that the Nebraska Department of Labor presumes that an indefinite, involuntary suspension is a termination for the purpose of an unemployment appeal. As I’ve stated in previous posts, an employee who is terminated should have an easier time in getting unemployment benefits because they employer has to prove the employee was fired for misconduct in connection with work.

Unfortunately, there isn’t a hard and fast rule about how long of a suspension constitutes a termination. I believe it would be prudent to ask how long the suspension is supposed to last. I also think that an employee should check in with their employer about the status of investigation during a suspension. By taking these steps the employee shows that they didn’t intend to end the employment relationship, but that the employers lack of communication forced their hand.

Once an employee has filed for unemployment, the employer is forced to provide a reason and some evidence about if and how the employment relationship came to an end. If the employer doesn’t do this and the employee can show they were let go not to due to misconduct, they employee generally gets unemployment benefits. Unemployment appeal hearings also give employees some opportunity to investigate and question their employer about the reason for their termination. This information can sometimes be helpful in other employment-related cases like workers’ compensation or discrimination claims.

Be thankful for poultry workers, give them a safer workplace

Posted on November 26, 2018 by Jon Rehm

Most people were fortunate to sit down for the traditional Thanksgiving meal with turkey and all the trimmings this weekend. Stopping to reflect about what people are thankful for is a part of Thanksgiving.

People should be thankful for the people who make their meals possible.

Bloomberg reported before the holiday that turkey processors have been cited for safety violations 61 times by OSHA since 2011 and that poultry workers are 60 percent more likely to be injured on the job than the average workers. Debbie Berkowitz with the National Employment Law Project also pointed out that turkey processing can be more hazardous than chicken processing because turkeys tend to be larger than chickens.

Our firm has blogged quite a bit about the dangers of meat processing whether about poultry or beef and pork which is more common in Nebraska and Iowa. OSHA and other government agencies like the USDA have recently announced plans that could increase the risk of injury to meat processing workers. But even when federal regulatory agencies were aggressive in protecting worker safety, many of an injured workers’ legal remedies – whether through workers’ compensation or anti-retaliation laws – stem from state law.

Much was made of the “blue wave” in November’s elections. Democrats picked up governorships and won control of state legislatures. Hopefully newly empowered Democrats will protect and expand worker safety and workers rights bills on a state level.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: workers’ compensation

Bill would eliminate workers’ compensation squeeze

Nebraska looks to limit debt collection in workers’ compensation claims

Mold on the job: not just workers’ compensation

Nebraska Chamber of Commerce bemoans decrease in workers compensation costs

A quarter-step forward but two steps back on fee scheduling air ambulance charges in workers compensation

Talking points for injured workers who want to see their own doctor

Indefinite suspensions are employer ghosting

Be thankful for poultry workers, give them a safer workplace

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