Category Archives: Workers Compensation

Federal opioid limitations: Good intentions, bad outcomes

Posted on April 29, 2019 by Jon Rehm

Senate Republicans and Democrats, including Presidential candidate Kirsten Gillibrand, have introduced legislation that would limit opioid prescriptions to a set number of days and limit refills. In my view such legislation would negatively impact people who were injured on the job.

I mostly agree with analysis of the legislation that was recently published in Rewire. One size fits all solutions don’t account for the needs of patients with chronic pain. Recently authors of the Centers for Disease Control guidelines for opioid prescriptions have stated that those guidelines have been misused to arbitrarily limit opioid prescriptions for pain management.

As a practical matter, in my experience prescriptions for opioids are already severely limited for injured workers. Statutory limits on opioids are a good excuse for insurers and self-insureds to wash their hands of future medical care obligations under workers compensation.

Opiod prescription limitations have other effects. Pain doctors who don’t prescribe opioids have more timeh to perfrom procedures. Procedures are more profitable for doctors and increase cost. Primarry care dcotors are often reluctant to prescribe opiods which puts more pressure on pain management doctors.

There are alternatives to opioids for pain managemen. Stem cell therapy has shown promise in treating pain. But insurers are reluctant to approve those options as that could increase costs for them and leave medical claims under workers’ compensation open.

I believe that opioid prescription monitoring is a better solution to fighting addiction than prescription limits. Those systems can flag potential problem users and get them help. In the case of someone hurt on the job who develops an addiction to pain medication, treatment for that addiction could be covered by workers compensation.

Massachusetts also developed what amounts to a drug court for opioids within their workers’ compensation court. Problem solving courts, like drug courts, are being increasingly used to help those with substance use issues in the criminal justice system. Massachusetts has adopted the idea in an administrative setting. Federal limits on opioid prescriptions would run counter to innovative programs put in place at a state and local level.

Workers compensation laws developed in the early 20th century when workplace safety laws could only be constitutionally enacted through state police powers under the 10th Amendment. Constitutional law evolved changed during the New Deal era which gave Congress broader regulatory powers over workplace safety and the economy in general.

As a result of the broadening of federal regulatory powers, federal laws limiting opioid prescriptions would likely be constitutional even if they interfered with innovative state programs like Massachusetts workers’ compensation opioid court. While the federal government seems to feel compelled to undercut state workers compensation laws to the detriment of workers, the federal government has given up on oversight of state workers compensation laws that could benefit workers.

The United States Department of Labor monitored state workers compensation laws as result of recommendations from the National Commission on State Workers Compensation Laws. The Commission set up 18 standards for state laws. The DOL stopped overseeing state workers compensation laws in 2004.

In 2015 several Senators and Congressional members, including then and current Presidential candidate, Vermont Senator Bernie Sanders, wrote to the Secretary of Labor about reinstating federal oversight of state workers compensation laws. Reporting by Pro Publica highlighted the shortcomings of state workers’ compensation laws The Department of Labor has made no progress on federal oversight of state workers’ compensation laws since then.

Something old, something new: The 737 Max and the future of workplace safety

Posted on April 18, 2019 by Jon Rehm

The aftermath of the Ethiopian Air 737 Max crash that killed 157 people

Even as workplace injuries decline, new threats to workplace safety are emerging. The recent crash of an Ethiopian Air 737 Max highlighted on emerging safety risk.

Safety experts attributed the crash to the 737 Max to using modern software to control machinery that was designed as long as 50 years ago. Experts believe that so-called control software works much better when it is designed together with the machinery it is meant to control.

But purchasing new machinery is expensive for business. (Or it cuts into returns for wealthy investors.) Control software is seen as a cost-saving hack.

In the case of the Ethiopian Air crash 157 crew members and passengers lost their lives. Thankfully not all accidents from using 2019 software to control 1969 machinery will be as fatal as the Ethiopian Air crash. But nonetheless accidents from industrial machinery can be gruesome and disabling even if they don’t make international news.

Obviously injuries caused by this slapdash industrial technology would be covered under workers’ compensation laws. But other laws would certainly come into play as well.

Workers who report problems with unsafe technology can bring whistleblower claims. Nebraska has broad protections for employees who report unsafe working conditions. A complaint about an unsafe working condition can be a report of a work injury in many circumstances. Employees reporting concerns over the design of technology may also have protections under federal law. The United States Senate has opened up an investigation of the 737 Max based on issues raised by a whistleblower. Complaints about machine design could be covered under the various whislteblower laws administered by the Occupational Safety and Health Administration. Employees bring a claim under the act have an easier evidentiary standard to meet than in other forms of retaliation cases.

Employees injured on the job by defective machinery can also bring a negligence case against the manufacturer of the equipment. This so-called third party case could be worth substantially more than a workers compensation claim. But in a case involving modern software controlling old machinery, there could be a dispute over who was at fault. Producers of older technology may also be able to defend negligence claims based on a statute of repose defense which can limit claims for injuries that have yet to happen.

Four rules of thumb about disability accommodation and public employees

Posted on April 15, 2019 by Jon Rehm

Public employees protesting in Wisconsin in 2011

A few weeks ago Brody posted about the story of a paramedic who ultimately did receive workers’ compensation benefits for a solely mental injury. I agree with Brody that it’s great that first responders can receive workers’ compensation benefits for mental distress on the job not related to a physical injury.

When I read Brody’s post, it reminded me of few informal rules or principles I’ve learned from helping injured workers with their employment law issues for the last 14 years.

Government employers can be difficult. I have a few theories why. First of all, they can invoke sovereign immunity as a defense to any potential unlawful acts. Secondly most of them are self-insured which means any claim made by an employee comes out of tax funds rather than from an insurance policy. Finally since, government employees are entitled to some procedural due process before a termination, government employers go out of their way to build a case for termination. This case building by management can take a terrible mental toll on employees who are being targeted for termination.

Unions are good: Most union contracts require that an employer just cause for termination. That’s usually true for public sector employees as well. But union representation usually means that an employee can receive a substantively fair process when facing difficulties at work. Union officials often know about past practices and can effectively deal with bad behavior by an employer short of attorney involvement. Union contracts often include arbitration rights to dispute a termination, but those rights are often meaningless without an attorney. Unions often foot the bill for an attorney to represent an employee in arbitration.

Disability accommodation is often a bureaucratic nightmare: Under the ADA, employee and employer and supposed to meet in an informal, interactive process to determine how to accommodate disability. What often times happens is that management decides to second guess doctors’ restrictions or ask for endless clarifications. The process becomes adversarial and driven by paperwork.

Mental disabilities aren’t treated the same as physical disabilities: Mental disabilities can present somewhat of a challenge as they are more difficult to measure than physical disabilities. It’s difficult to manage what can’t be measured, but accommodations for a mental injury can be as simple as accommodations for a physical injury if an employee and employer sit down in good faith.

I also believe that employees who suffer from mood disorders are often considered risks for violence if they are having difficulties in the workplace. Studies show the mentally ill are no more likely to be violent than those without a mental health diagnosis. A mentally ill employee who is struggling with job tasks or getting along with co-workers may be not be a qualified employee with disability, however that does not give employers carte blanche to deem an employee with a mental illness to be a threat for workplace violence.

Who is going to hire me with restrictions?

Posted on April 11, 2019 by Jon Rehm

Injured workers who are looking to return to work with work restrictions after an extended time of healing from an injury face some problems in returning to work. In many cases the injured worker has been off work well beyond any time covered by the Family Medical Leave Act, the Americans with Disabilities Act and or any leave of absence policy, so they are unable to return to their old job assuming they could do their old job.

Workers in this situation often ask “Who is going to hire me with restrictions?” It’s a legitimate question. Here a few do’s and don’ts from my experience as a lawyer representing injured workers.

Do: Work with vocational rehabilitation

Nebraska offers vocational rehabilitation, VR for short, as part of our workers’ compensation act. Sometimes vocational rehabilitation can mean an injured worker gets paid their so-called temporary total disability rate while they go to school. More often this means a vocational counselor helps an injured worker look for work while they are receiving those benefits. VR is the Rodney Dangerfield of workers’ compensation benefits – it often gets no respect – but it can be very helpful for injured workers. It’s also not a benefit that an insurance company will often voluntarily offer to an injured worker like medical benefits or temporary disability pay.

Nebraska also offers vocational rehabilitation through our state department of education. That fact confuses a lot of my clients when I talk about VR through workers’ compensation. But if an injured worker has settled their workers’ compensation case or is fighting their workers’ compensation case, they can use VR through the state department of education to help return to work

Don’t: Assume no one will hire you

Disability discrimination is real. That’s why there is the Americans with Disabilities Act and parallel state laws. Under the ADA, it is illegal for an employer to discriminate against a qualified employee with a disability who can do a job with or without reasonable accommodations.

What that does that last sentence mean?. In plain terms, this means that so long as you meet most of the qualifications of the job, an employer or perspective employer should work with you to make minor tweaks to a job. Sometimes this means using a stool to avoid standing. Sometimes this means using a cart to avoid heavy carrying or lifting.

In practical terms, Nebraska employers claim there is a shortage of workers. I think business interests overstate this concern for political reasons, but as the job market has improved employers seems more willing to take chances on employees.

Don’t: Fail to disclose your restrictions or injury if asked by a new employer post-hire

In order for an employee to accommodate restrictions from an old injury, they need to know about the restrictions. While an employer can’t ask you about a disability pre-hire, they can ask about a disability post-hire so long if it is job related. The “Who is going to hire me with restrictions” line can get a worker into trouble if they don’t disclose they have some restrictions to certain body parts. Again, an employer needs to work with you to some extent on accommodating an old injury,

Failing to disclose an old injury can also make it more difficult to make a workers’ compensation claim if an injury with a new employer worsens an old injury. It can also be grounds to deny a workers’ compensation claim entirely. Failing to disclose an old injury can potentially be grounds for termination for dishonesty on employment application.

Don’t: Tell anyone who isn’t your lawyer or a family member that “No one is going to hire me with restrictions.”

Going back to the “Who’s going to hire me with restrictions?” It’s a legitimate question. But if an injured worker is still fighting a workers’ compensation claim, that statement said to the wrong person can hurt a claim.

Who is the wrong person? Anyone who isn’t a family member or your lawyer.

When a vocational rehabilitation counselor, doctor, insurance company lawyer, insurance adjuster or mediator hears “Who is going to hire me with restrictions?” they tend to think. “This person doesn’t want to work” and or “This person isn’t hurt as bad as they think they are.”

Why do they think that way? If you work on the insurance-side of workers’ compensation for an extended length of time, I think you tend to perceive cases from that perspective. Lawyers and doctors and other professionals look at work differently. Many professionals tend to live to work rather than work to live. I believe that professional class people glamorize blue collar labor and tend to get nostalgic about blue collar or service jobs they did when they were younger. Professional class people also tend to consume media geared towards professional class people that tends to cover the workplace from the perspective of business.

But regardless of why professionals involved in workers’ compensation case think this way, those professionals have a lot of influence over the value of an injured workers’ compensation claim. Injured workers need to be careful about how they communicate with these professionals.

Will Medicare beneficiaries see faster settlements?

Posted on March 28, 2019 by Todd Bennett

“How much will my case settle for ?” and “When will I get my settlement?” are two of the biggest questions asked by clients in a workers’ compensation or personal injury case. Medicare beneficiaries will soon better know the answers to these questions.

As of April 1, the Centers for Medicare and Medicaid Services will allow conditional payments to be made electronically. The change to an electronic payment system will allow all authorized users to view the updated demand status of CMS and track electronic payments in the “Electronic Payment History” tab.

This change should allow Medicare beneficiaries who have a workers’ compensation or personal injury claim to have their cases settle sooner and receive their settlement proceeds sooner.

A Medicare conditional payment is a payment made by Medicare in a disputed workers’ compensation or personal injury case. In a conditional payment situation Medicare will pay on a medical expense but demand that they be paid back from the proceeds of a settlement or judgment.

In substance a conditional payment issues is like any other subrogation issue where some form of health insurance pays for an injury that should be covered under workers’ compensation or a liability policy. In all cases, the plaintiff needs to know how much can be repaid so they can settle a claim and know what they might receive in a settlement.

In a Nebraska workers’ compensation case, under Neb. Rev. Stat. 48-120(8),a judge can order that a third-party who paid for medical care that was related to be a work injury be reimbursed for payments made on behalf of an injured worker.

The problem with Medicare is that the conditional payment process is often more burdensome than determining a subrogation or repayment interest from other types of insurers – it often takes longer as well. Hopefully electronic payment and tracking of payments will simplify and speed up settlements involving Medicare beneficiaries.

Todd Bennett elected to The College of Workers’ Compensation Lawyers

Posted on March 25, 2019 by Rehm, Bennett & Moore, P.C., L.L.O.

Todd Bennett was recently inducted into the College of Workers’ Compensation Lawyers

Congratulations to Todd D. Bennett of the Rehm Bennett Moore Rehm and Ockander Law Firm who was inducted as a Fellow into The College of Workers’ Compensation Lawyers on March 16, 2019 in Miami, Florida.

The College of Workers’ Compensation Lawyers has been established to honor those attorneys who have distinguished themselves in their practice in the field of workers’ compensation. The college is a national organization that includes plaintiff’s attorneys, defense attorneys, judges and professors.

Fellows have been nominated for the outstanding traits they have developed in their practice of over 20 years representing injured workers and acting for the benefit of all in education, overseeing agencies and developing legislation. These individuals have convinced their peers, the bar, bench and public that they possess the highest professional qualifications, professional expertise and leadership. A Fellow has a thirst for knowledge in all areas of the law that affects their representation of their clients in Workers’ Compensation.

Todd Bennett joins his law partner, Rod Rehm, as the only two plaintiff’s attorneys in Nebraska who have been selected to the college. The other two members of the college from Nebraska, defense attorneys Dennis Riekenberg and Dallas Jones, were there in Miami when Todd was inducted into the college.

Settling a workers’ compensation and wrongful termination case at the same time

Posted on March 7, 2019 by Jon Rehm

Many employers want to settle all employment-related claims when they settle a workers’ compensation case

Clients often ask me, “If I settle my workers’ compensation case, can I still sue my employer for wrongful termination?” My answer is almost always yes. But for one unfortunate employee in Louisiana, it appears settling their workers’ compensation case may have doomed their wrongful termination case.

A federal district court in Louisiana held that a worker who settled their workers’ compensation case with a release that released all claims arising from their work injury was deemed to have settled their wrongful termination case under various civil rights laws.

The Louisiana decision raised the ire of some employee-side attorneys. Workers’ compensation laws and civil rights laws provide different remedies for different harms. A Minnesota court recently used this fundamental tenet of law to hold that a disability discrimination claim under their state’s civil rights laws was not barred by the exclusive remedy provision of their state’s workers’ compensation act.

But as a practical matter, some employers like to settle all claims arising out of the employment relationship when they settle a workers’ compensation case. In these cases there is usually consideration, or seperate amounts, to settle the workers’ compensation claim and the employment law claim. Sometimes this can be advantageous for a client. I am not sure of how the release was structured in the Louisiana case, but here is how I structure so-called global releases. In short, you need two releases: one for the workers’ compensation claim and one for the wrongful termination case.

Settling the workers’ compensation case

I wrote earlier about the so-called exclusive remedy of workers’ compensation. In Nebraska, that exclusive remedy also means the workers’ compensation court has limited jurisdiction. Nebraska courts have stated repeatedly that the Nebraska Workers’ Compensation Court can not adjudicate employment law cases because they are a court of limited jurisdiction. Neb. Rev. Stat. §48-139 gives the court jurisdiction over workers’ compensation settlements. 48-139 also dictates the language of workers’ compensation settlements, states when settlements must be approved by the court and mandates the filing of settlement papers with the court. In short, if the Nebraska Workers’ Compensation Court does not have jurisdiction to hear a wrongful termination or discrimination case, any settlements in that court should not effect any wrongful termination case or discrimination case.

Settling the wrongful termination or discrimination case

A settlement agreement in a wrongful termination case is a different document. Usually there is no requirement that it be filed or approved by a court. These agreements are often synonymous with severance agreements and oftentimes included language required by the Older Workers’ Benefit Protection Act if the employee is over 40 years old.

Settlement agreements in employment cases usually also talk mention tax liability. Tax liability is usually not mentioned in a workers’ compensation settlement as workers’ compensation benefits are almost never taxed. But settlement proceeds in a wrongful termination or discrimination case are usually taxable and those agreements should include some discussion of tax liability.

Sometimes employers will want a resignation as a condition of paying a settlement to an injured employee. If the employee is still working, that provision can be a deal breaker. But for an employee who has been terminated the extra money for a wrongful termination claim can be beneficial. Settling all claims at once may also help an employee minimize taxes by apportioning the majority of the value of the severance or employmennt law settlement into the non-taxable workers’ compensation settlement.

Workers compensation basics: Nebraska workers can pick their own doctor to treat a work injury

Posted on January 21, 2019 by Rod Rehm

Injured Nebraska workers have an absolute right to choose their surgeon if surgery is needed. Nebraska workers compensation law provides injured workers to choose their own treating doctors unless Nebraska employers get a written waiver of that right. Many employers try to control doctor choice without following the rules and getting a written waiver. The requires use of an approved Form 50 with this language.

Under the Nebraska workers’ compensation law, you may have the right to choose a doctor to treat you for your work-related injury. You may choose a doctor who has treated you or an immediate family before this injury happened. Immediate family members are your spouse, children, parents, stepchildren and stepparents. The doctor you choose must have records to show that past treatment was provided. Your employer may ask the person who was treated to give permission so that doctor can verify past treatment.

If you want to choose your doctor, you must tell you employer the name of the doctor you choose. Do this as soon as possible after your employer gives you this notice and before getting any treatment unless it is emergency medical treatment. Once you tell your employer the name of the doctor, you may not change unless your employer agrees or the Nebraska Workers’ Compensation Court orders a change.

If you do not choose your doctor, your employer has the right to choose the doctor to treat you. The employer may also choose the doctor to treat you if you or your family member does not give permission so your employer can verify past treatment by the doctor you chose.

Even if a worker under Nebraska law waives choice of treating doctor they can still choose their surgeon, if one is needed. This right can bot be waived. It is absolute. An insurance company or employer is telling you that you need to see “their doctor” or that you can’t see your doctor to treat for a work injury, you should contact a lawyer.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: Workers Compensation

Federal opioid limitations: Good intentions, bad outcomes

Something old, something new: The 737 Max and the future of workplace safety

Four rules of thumb about disability accommodation and public employees

Who is going to hire me with restrictions?

Will Medicare beneficiaries see faster settlements?

Todd Bennett elected to The College of Workers’ Compensation Lawyers

Settling a workers’ compensation and wrongful termination case at the same time

Workers compensation basics: Nebraska workers can pick their own doctor to treat a work injury

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