Author Archives: Brianne Rohner Erickson

Workers’ Compensation Basics: Emotional, Psychological Injuries in Nebraska

Posted on September 17, 2015 by Brianne Rohner Erickson

This blog post is the next in a series that examines the basics of workers’ compensation. It gives information on the compensability of emotional or psychological injuries in Nebraska.

The Nebraska Supreme Court recently released a new opinion in Hynes v. Good Samaritan Hosp., 291 Neb. 757 (Sept. 4, 2015) concerning the causation standard for emotional or psychological injuries in workers’ compensation injuries. This is a favorable decision for injured workers in Nebraska, and very necessary progress in the recognition and legitimization of these types of injuries. It is also progress in the struggle against the stigma associated with mental-health issues in general.

The plaintiff in the Hynes case was attacked by patients on three separate occasions while working as a nurse. She suffered some physical injuries, but ultimately required extensive treatment for major depressive disorder and PTSD and was unable to work due to her mental injuries. This decision clarified that where there is sufficient evidence to find that a psychological injury is directly related to the accident and the employee is unable to work, the employee is entitled to compensation. Before this decision, plaintiffs were generally met with the burden of showing their mental injury was directly linked to ongoing pain from a physical injury.

Nebraska law does still require a work-related accident and physical injury for most injured workers (there is an exception for mental injuries unaccompanied by physical injuries for an employee who is a first responder). An injured worker must suffer some “violence to the physical structure of the body,” rather than an injury caused by a mental stimulus only. Additionally, even where an injured worker has suffered a physical injury, mental injuries entirely attributable to other factors – such as the stress of litigating a workers’ compensation claim, where there is no physical injury related to the mental injury – are considered an intervening event and therefore not compensable. Where a mental injury is attributed to both a physical injury and the psychological stress of issues such as immobility and inability to work, the claim may be compensable.

Just like most physical injuries, proving a mental injury is related to a work-related accident requires that an injured worker seek treatment and obtain an expert opinion from a doctor. The doctor must find that the injured worker sustained physical and psychological injuries as a proximate result of a work-related accident.

Working toward recovery from a mental injury can take as long as or longer than recovering from a physical injury, and the effects can result in vast negative repercussions for an injured worker and their family. Receiving medical and psychological care and other compensation while in the recovery process can make all the difference in the world to the ultimate outcome for an injured worker dealing with a mental injury. Determining whether you have a compensable claim, and obtaining this care and compensation can be complicated, so consult an experienced workers’ compensation attorney for help.

Please read the previous blog posts in the workers’ compensation basics series by clicking on these links:

Workers’ Compensation Basics: Provide Notice of Injury

Posted on June 25, 2015 by Brianne Rohner Erickson

This blog post is the fourth in a series that examines the basics of workers’ compensation.

Whether an injured employee provided notice of an injury to their employer is an issue that often arises in a workers’ compensation case. It is always part of an injured worker’s burden to prove that they provided notice of their injury to their employer. However, an employer may raise this issue as a possible defense against the injured worker’s claim for benefits. Making sure an employer knows about an injury, regardless of whether the injured worker knows for sure that it is work-related, is typically a very simple – but very important – part of a workers’ compensation case.

The reasons for requiring notice make a lot of sense when you think about it: if the employer does not know about the injury, how can the employer know an injured worker may require medical care or other benefits? Different employers will have different procedures for reporting accidents and injuries, so it is important for employees to consult their employee handbook to find out what their employer expects. Ultimately, the claim may be compensable whether the injured worker followed the rules or not, but it is always the best policy to be proactive and avoid unnecessary problems down the road.

What happens if an injured worker thinks his or her injury might be work-related, but he or she is not sure and the injury isn’t reported right away? Maybe an accident occurred at work, but the injured worker did not notice any symptoms until the next day? Or they knew they were hurt, but did not seek medical care for several weeks because they thought it would go away on its own? Nebraska workers’ compensation law requires an employee to notify their employer of an injury “as soon as practicable” after the accident occurred. There is no answer in Nebraska as to what, exactly, “as soon as practicable” means in terms of days, weeks or months. It will depend on the facts of the case. Ideally, an accident occurs and an employee provides notice in writing immediately following the accident. When things don’t turn out “ideally,” however, if an employee can prove that the employer had sufficient notice or knowledge of the employee’s injury to lead a reasonable person to conclude that the injury was potentially compensable, the notice is considered sufficient under Nebraska law. The question is whether the employer knew enough that a reasonable employer would conclude they had better investigate further. This type of notice may come in the form of requests for time off to attend medical appointments, showing up to work with a brace on or the fact that an employer processes the employee’s bills with his or her group health insurance.

The important thing to remember about notice is just that: it is important. It is an important and simple step to take whenever an employee is injured. It can also be complicated, so consult an experienced workers’ compensation attorney when you think you may have a notice problem or when your employer denies your claim because of an alleged lack of it.

Read the previous blog posts in the series by clicking on these links:

How Does Workplace Violence Fit into Workers’ Compensation?

Posted on June 22, 2015 by Brianne Rohner Erickson

The Occupational Safety and Health Administration (OSHA) defines workplace violence as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. OSHA also reports that nearly 2 million American workers report having been victims of such violence each year. We are probably most likely to think of the horrible stories of violent acts that occur in the course of commission of a crime such as a robbery. These acts are committed by persons who have no legitimate reason to be there, with no relationship to the employer or employees. Many instances of workplace violence are also committed by upset clients or customers, students or patients. Family members, acquaintances, and persons who have personal relationships with employees may also be perpetrators.

What happens when someone is injured due to violence that occurs between co-workers, though? Are injuries sustained as a result of this violence compensable under Nebraska workers’ compensation law? The answer, like many answers to legal questions, is it depends. The fact that you can prove you were assaulted and injured on the job does not automatically mean you are entitled to benefits. It is always the injured workers’ burden to prove he or she suffered injuries because of an accident arising out of and in the course of employment. Here, too, an injured worker must prove the accident resulted from risks arising from within the scope or sphere of the worker’s job. The general rule for workplace violence in Nebraska law is that where an assault is purely personal, the victim is not entitled to workers’ compensation benefits. This means that if you are assaulted at work by a co-worker, and you are unable to show that the violence grew out of or was connected to the relationship as fellow employees or acts in the performance of work, you may not be entitled to compensation for your injuries.

Examples of cases where an injured employee was denied benefits include where a fight broke out over payment on a side job, where one employee assaulted another because he had a problem with that employee’s status as a registered sex offender, or where one employee shot and killed her husband (a co-worker) allegedly due to her fear of further domestic violence. The courts determined in these cases there was no causal connection between the employment and the accident and injury.

Whether an accident arises out of and in the course of employment must be determined by the facts of each case. As a practical matter, in many cases, a claim for injuries due to workplace violence may take more time than usual to process. Sorting through witness accounts and getting every side of the story will be a necessary and often complicated part of the workers’ compensation insurer’s investigation. Since finding out the reason for the incident is significant, benefits may be more likely to be delayed than in a more typical or common workers’ compensation claim. It is important to consult an experienced workers’ compensation attorney if you have questions about whether you are entitled to workers’ compensation benefits for an injury resulting from workplace violence.

The Role Workers’ Compensation Plays in the Amtrak Train 188 Derailment

Posted on May 18, 2015 by Brianne Rohner Erickson

Our sympathies go out to all of the friends and families of the victims of Tuesday’s Amtrak passenger train derailment in Philadelphia, as well as a wish for the recovery of those injured. The latest news reports indicate that, as of Friday morning, the crash has left at least eight dead and more than 200 injured.

In reading some of the profiles of those fatally injured in the crash, I have thought about how the families of these victims move forward now. There has been a lot of discussion of the role of Amtrak’s negligence, train safety in the United States, and the engineer responsible for driving the train, but little has been mentioned of the role of the employers of the victims, some of whom were traveling to or from work or on work-related business. Some of these employers may be responsible for providing workers’ compensation benefits, and some may not. Of the eight fatalities, one individual was reportedly headed home following work-related meetings in Washington, D.C. Another was reportedly commuting home to New York from her job in Philadelphia. Although the circumstances appear similar, Nebraska and other states’ workers’ compensation law would likely treat these two claims very differently.

Nebraska follows a going to and from work rule, which states that accidents occurring in the course of a worker’s travel are generally deemed not to be compensable when the worker is “going or coming” from his or her place of employment. This rule essentially finds that a worker’s daily commute is not covered by workers’ compensation. This travel time is not considered to be within the course and scope of employment. It is likely that the crash victim who was commuting home to New York and her family would not be eligible for workers’ compensation benefits.

One of the exceptions to the going to and from work rule is the “commercial traveler” rule. This rule essentially provides that, if a claimant must be required to travel in the performance of his or her duties and be on the employer’s business during travel, they are generally within the course and scope of their employment from the time they leave home until they return. Some exceptions may arise if it is determined that the employer’s interest was merely incidental, but generally those workers traveling on business, like the crash victim who was reportedly returning home from work-related meetings, should be covered by workers’ compensation.

Ranked No. 44: As ‘Nice’ as it Gets for Women in Nebraska?

Posted on April 13, 2015 by Brianne Rohner Erickson

Nebraska recently changed its tourism brand from the stalwart of “Nebraska … the good life” to “Visit Nebraska. Visit Nice.” However, the wage gap for women in this state is neither nice nor contributing to “the good life” for women and their loved ones in this state.

In all but three of Nebraska’s 93 counties, the percentage of women between ages 25 to 54 who work is well above the United States’ national average, according to an American Community Survey featured recently in an article in The New York Times by Gregor Aisch, Josh Katz and David Leonhardt. This is positive information, particularly when you take into account that places with low levels of female employment have a lot of overlap with high-poverty geographical areas of the United States.

I was initially encouraged by these numbers. It’s definitely a good thing to have high employment in our state. It’s no secret that Nebraskans can appreciate hard work. That must be part of what they are talking about when they said “the good life.”

However, this encouragement waned considerably when I also noted that a study from the National Women’s Law Center using 2013 data found that Nebraska (again, among the states with the highest percentages of working women in the entire nation) is also ranked as number 44 out of the 50 states and Washington, D.C., for wage gaps between median male and female earnings. Forty-four. That puts our great state in the top ten worst states for this disparity. The data showed that full-time, year-round working women in Nebraska are paid, on average, 74.1 cents per every male-earned dollar. This is compared to the national average of 78.3 cents and the No. 1 spot, Washington, D.C., at 91.3 cents.

Nebraska is saturated with hard-working women, so why do women’s wages appear to not reflect this? Why are Nebraska’s working women earning nearly $1,000 less per month than Nebraska’s working men? Why do Nebraska’s working women have to work more than 16 months to earn what Nebraska’s working men earn in 12 months? It doesn’t seem fair that states with fewer women out working for a living actually rank higher.

To be clear, these numbers do not necessarily show that women in Nebraska are systematically paid less for the same work as men (although this is certainly a nationwide issue). This is not the situation the Equal Pay Act (EPA) was necessarily designed to address. The EPA prohibits wage discrimination “between employees on the basis of sex … for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. §206(d)(1). The numbers in this study are based on median earnings for full-time year-round workers, regardless of occupation.

Even so, again, the percentage of female workers in Nebraska is well above the national average. According to the Institute for Women’s Policy Research, women in America make up nearly half the workforce. In 4 out of 10 families, they are the equal, if not main, earner. They are now more educated than men, earning more college and graduate degrees. The many reasons we may present to explain why women earn less apply in every state, not just Nebraska. Yet, here we are, living “the good life” at number 44. And that reality isn’t very “nice” in Nebraska or anywhere else.

The Effects of Not Working

Posted on March 19, 2015 by Brianne Rohner Erickson

In our practice of helping people prevail over the setbacks encountered when dealing with work-related injuries and employment issues, our hardworking clients often find themselves in an unfamiliar position: not working. Factors such as one’s age and gender can significantly impact how long one might remain unemployed, how one uses his or her time while not working, and how it may affect one’s health and family relationships. The effects of unemployment can be particularly harsh on families with children.

A May 2014 study from the Bureau of Labor Statistics shows that, on average, women 55 and older experience the highest rates of long-term unemployment and the longest spells of unemployment. Average duration of unemployment among women 55 and older was higher than men of the same age and higher than both men and women in other age groups. This study was cited in a June 2014 issue brief from the National Women’s Law Center called Long-Term Unemployment: Spotlight on Women and Families, written by Joan Entmacher, Katherine Gallagher Robbins and Lauren Frohlich.

Men and women also behave very differently when not working. A December 2014 New York Times, CBS News and Kaiser Family Foundation survey found that women spend 33 percent more time volunteering and 34 percent more time exercising while not employed. Men, on the other hand, were more likely to do both activities less when not working, compared to when working. Men are also more likely to engage in non-exercise leisure activities such as reading, watching TV and surfing the Internet.

For both men and women who have stopped working, the December 2014 survey found a reported decline in mental health. This decline was significantly higher in men, with 43 percent of men saying their mental health was worse, and 16 percent saying it was better. Only 29 percent of women claimed worse mental health, compared to 25 percent who claimed an improvement. According to the poll, 41 percent of men reported a decline in physical health, but women reported almost no difference in this area. One factor that this survey does not appear to consider, however, is the reason why an individual is not working. In my experience, those suffering from injuries that prevent them from returning to work would likely report different statistics concerning their health while not working.

Relationships with children are also influenced by unemployment, and this impact also differs among men and women. The December 2014 survey found that both men and women say they are spending more time with their children. However, only 22 percent of men reported an improvement in their relationships with their children. According to the poll, 60 percent of women reported an improvement. Women were also much more likely to report “family responsibilities” as a reason for not returning to work.

The New York Times, CBS News and Kaiser Family Foundation survey did not discuss the effect on children of their parents’ long-term unemployment. The National Women’s Law Center issue brief discusses this concern. Their research found that, among other things, single parents are more like to be unemployed long term (and more likely to be women), the poverty rate among families with a long-term unemployed parent was 35.3 percent as of May 2012, and unemployment and poverty hurt children by adversely affecting family dynamics and school performance. These effects can be long term, and can impact rates of college attendance and children’s future earnings. That is one of the many reasons that the firm supports Kids’ Chance of Nebraska, a nonprofit that provides scholarships to students who have a parent who either suffered an on-the-job fatality “or injuries that have had a significant adverse effect on family income,” according to the Kids’ Chance website. These $2,500 scholarships can help bridge the financial gap that occurs with an injured parent and can be used for “vocational/technical school, junior college, undergraduate or graduate programs.”

There are many reasons why an individual may find themselves in this unfortunate position, and our firm encounters it far too often among our clients who are injured at work or dealing with retaliation, discrimination or some other employment issue. We are experienced in helping our clients obtain benefits they are entitled to, such as workers’ compensation benefits, medical care, and unemployment benefits in order to help prevent the detrimental effects of not working.

Jobs, Injuries Differ for Working Women and Men

Posted on January 22, 2015 by Brianne Rohner Erickson

Women and men tend to have different kinds of workplace injuries.

Men and women are different. Not surprisingly, men and women in the workforce are also different. Although women often perform the same jobs with the same hours as men, statistically, men and women tend to perform different kinds of jobs. Given this, as well as the anatomical differences between men and women, women often face different health challenges in the workplace.

When looking at types of work-related injuries, the U.S. Bureau of Labor Statistics reports that women generally account for more work-related cases of “carpal tunnel syndrome, tendonitis, respiratory diseases, infections and parasitic diseases, and anxiety and stress disorders.” The Centers for Disease Control and Prevention (CDC) also points out that social, economic and cultural factors often put women at more risk in the workplace. Many women perform part-time, temporary, or contract work, all with lower incomes and fewer benefits. Notes the CDC, “[l]ike all workers in insecure jobs, women may fear that bringing up a safety issue could result in job loss or more difficult work situations. They may also be less likely to report a work-related injury.” The CDC also found that immigrant women are particularly at risk due to barriers related to immigration status, work-life balance, and types of industries and jobs they work in.

Violence in the workplace is also an issue that is statistically more likely to affect women than men. For example, the U.S. Bureau of Labor Statistics found that in 2013, 13 percent of occupational injuries or illnesses that resulted in days off work in the health care and social assistance sector – fields dominated by women – were the result of violence. This is compared to 4 percent of cases overall in the private sector. An alarming figure provided by the Bureau shows that, although women’s share of the number of fatal occupational injuries is significantly lower than men’s, violence (homicide) was the second leading cause of occupational fatalities among women. Of the 302 occupational fatalities suffered by women in 2013, 97 (approximately 31 percent) resulted from violence. Violence accounted for only 6 percent of fatalities among men.

The experienced lawyers at Rehm, Bennett & Moore navigate clients through the process of obtaining compensation for all types of work-related injuries, whether you are facing any of the workplace health challenges listed above or something completely different. We will be hosting a booth at the 2015 Lincoln Women’s Expo held at the Lancaster Event Center this Saturday from 10 a.m. to 6 p.m. and Sunday from 10 a.m. to 5 p.m. If you have questions or concerns about a workers’ compensation or personal-injury issue, please stop by for a consultation.

Study: Risk at Work Higher for Women

Posted on January 19, 2015 by Brianne Rohner Erickson

A 2011 California study titled “Working Safer or Just Working Longer? The Impact of an Aging Workforce on Occupational Injury and Illness Costs” CHSWC Report (February 2011), by Frank Neuhauser, et al., was performed under contract with the Commission on Health and Safety and Workers’ Compensation. The primary focus of the study was to address concerns about the impact of an aging workforce on occupational safety and health. The study ultimately made a number of surprising findings concerning not only the impact of age, but the disparity of occupational risk between men and women.

The study found that, unlike with men, whose risk lowers with age, the risk of injury for women stays constant or increases. The study also identified a new and very important issue: “that the risk of occupational injury is 20% to 50% higher for women in the same job working the same hours as men … [and] [t]his difference becomes more severe with age.” (Neuhauser, pg. 1)

The percentage of women in the workforce has increased over the last several decades, and women now represent about half of the workforce. Along with this increase, the percentage of women performing higher-risk jobs, such as construction and manufacturing, has also increased. (Neuhauser, pg. 16) Overall, women account for approximately 40% of occupational injuries and illnesses, which can be attributed to the concentration of women in less risky occupations. However, in the same jobs, working the same hours as men, women are much more likely to be injured. (Neuhauser, pg. 22)

This difference may be attributed to level of experience within the workforce, as men are more likely to be more experienced at any age. It may also be that “higher-risk occupations traditionally dominated by men are characterized by workplaces, machinery and safety equipment that is designed for men and poorly adapted for the increasing number of female workers.” (Neuhauser, pg. 22) Whatever the reasons, this is an important issue that requires future research.

This issue is one of many reasons why Rehm, Bennett & Moore will be hosting a booth at the upcoming 2015 Lincoln Women’s Expo held at the Lancaster Event Center on Jan. 24 from 10 a.m. to 6 p.m. and Jan. 25, from 10 a.m. to 5 p.m. Regardless of gender, if you have questions or concerns about a workers’ compensation issue, please stop by for a consultation.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Author Archives: Brianne Rohner Erickson

Workers’ Compensation Basics: Emotional, Psychological Injuries in Nebraska

How Does Workplace Violence Fit into Workers’ Compensation?

The Role Workers’ Compensation Plays in the Amtrak Train 188 Derailment

Ranked No. 44: As ‘Nice’ as it Gets for Women in Nebraska?

The Effects of Not Working

Jobs, Injuries Differ for Working Women and Men

Study: Risk at Work Higher for Women

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