Category Archives: Workers’ Compensation

I don’t care what you heard on NPR. Walmart isn’t getting rid of greeters.

Posted on May 23, 2019 by Jon Rehm

A minor uproar ensued a few months ago when outlets like NPR reported Walmart was eliminating the familiar greeter job in 1000 stores.

So it seemed odd when I saw a local competitor of Walmart placing a greeter in a store that I frequent. The person told me they were working a “light duty” job.

Here is why I think more big retailers will be putting in greeters.

I wrote back in 2017 that retailing jobs were becoming heavier and more hazardous because more employees would be involved in delivery work created by online ordering.

But doesn’t the fact that retail jobs are becoming physically more demanding mean that light jobs like greeter will be eliminated?

I don’t believe so. Heavier jobs mean more injuries on the job. More injuries on the job mean employers will be looking to place employees on so-called “light” or alternate duty jobs. More light or alternate duty assignments means injured workers getting placed into light jobs like greeter or other attendant jobs on a temporary basis.

In my experience Walmart accommodates injured employees through something called a Temporary Alternate Duty (TAD) matrix. The TAD matrix is a mix of job light job functions that can be done. The Greeter job is part of that matrix. I doubt that Walmart is going to take Greeter out of their matrix when the alternative would be paying their injured workers temporary total disability.

I learned the term TAD back in 2012 when I deposed a Walmart store manager in central Nebraska. In 2012, there were also press reports that Walmart had eliminated the greeter job. When I asked the Walmart manager about those reports, he was flippant with me In retrospect, he had some grounds to think I asked a stupid question. Walmart didn’t get rid of greeters in 2012 and I doubt they will in 2019. (Walmart has nearly 4,500 stores in the United States. Recent press accounts report Walmart is only eliminating greeters in 1000 stores)

I don’t want to sound dismissive of disabled employees who work as greeters who might have lost their job. But I believe that Walmart shoppers and shoppers of similar stores will continue to see store greeters because that’s how retail employers will accommodate injured employees by placing them into ligther jobs like greeter or attendant jobs.

When active shooter drills lead to workplace injuries

Posted on April 22, 2019 by Jon Rehm

The United States has one of the highest rates of gun violence in the developed world. Unfortunately the workplace is no sanctuary from this violence.

Many workplaces, schools in particular, participate in active shooter drills. But an active shooter drill at a school in Indiana lead to more workplace violence.

As reported in Splinter, teachers in Monticello, Indiana were shot “execution style” with pellet guns by sheriff’s deputies participating in a mass shooter drill. Indiana teachers have helped introduce legislation outlawing that practice.

The practice of shooting people with pellet guns during active shooter drills raises a few legal issues. True to the title of this blog, any physical injury caused by being shot with a pellet gun during a workplace active shooter drill would be covered under workers’ compensation. At least in Nebraska any mental injury stemming from the phyiscal injury should be covered under workers’ compensation as well.

Workers’ compensation pays limited benefits regardless of fault of the employee or employer. Workers’ compensation does not pay for pain and suffering or generally punish employers for bad conduct. But an employee can bring a so-called third-party case if the conduct of someone other than the employer caused the injury. In the Indiana case, it was a county sheriff who shot the teachers with pellet guns.

So, the injured teachers and school workers could bring a case for intentional assault or possibly even a civil rights case against the sheriff’s department. Of course any state actor responsible for an injury has some protections under sovereign immunity for their misconduct. (Sovereign immunity usually is not an issue in workers’ compensation)

Besides being compensated for physical and mental injuries, an employee who is intentionally injured in an active shooter drill may have employment law concerns as well. In my experience, an employer dumb enough to let their employees be assaulted would be bird-brained enough to retaliate against an employee who made a workers’ compensation claim for the injury. That same employer would probably also retaliate against an employee who reported safety concerns to an outside agency like OSHA.

In a public school setting, the school would have some defenses in an employment law case via sovereign immunity. But public schools are generally unionized and unions can be a great resource for employees who are intentionally assaulted on the job. As mentioned above, the teachers union in Indiana supported legislation to ban the practice of shooting people with pellet guns during active shooter drills. Solid union representation can also help protect employees who speak out against unsafe practices in the workplace.

Toxic uniforms create health hazards, legal issues for Delta flight attendants

Posted on April 8, 2019 by Jon Rehm

It’s news in and of itself when a story about workplace safety gets national attention. So in case you missed it, I want to draw more attention to the story Mike Elk reported in The Guardian about flight attendants at Delta Airlines suffering rashes, hair loss, shortness of breath and other symptoms they believe to caused by chemicals in their new uniforms.

The reporting was excellent and my summaries don’t do it justice – read the story for yourself. I am writing to unpack the many legal issues this story raises.

Workers’ Compensation – I have never represented a client who suffered a work injury from wearing their uniform, but I have experience in representing employees who have suffered allergic reactions from substances encountered on the job. I wrote a post about the issues that can arise from mass mold exposure that ran in January. Thinking like a lawyer here, there are several issues that would come to mind in prosecuting this kind of case.

The first question would be jurisdiction. Like truck drivers, flight attendants work all over the country, so several states may have jurisdiction over their claim. (Delta flies out of both Lincoln and Omaha airports, so Nebraska may have jurisdiction over some of these claims) A lawyer would have to judge where to bring a claim based on various factors like benefits available to a worker and causation standards in a particular state. An injured flight attendant may also be able to claim benefits in multiple states.

Third-Party Negligence – As reported in the story, flight attendants from other airlines have reported similar concerns about uniforms in the recent past. In my view the fact there have similar concerns about flight attendant uniforms in the past, means there could be colorable negligence case against the manufacturer of the uniforms – Land’s End.

Workers’ compensation benefits are limited by law, but in exchange for limited benefit employees can get benefits regardless of fault. If another party is responsible for the injury the injured worker can sue that party for damages that more completely compensate for an injury.

But if a third-party is responsible or partly responsible for a work injury and employee is compensated by that party, an employer who pays workers’ compensated has the right to be repaid from those proceeds. Repayment rights, also called subrogation rights, can vary from state to state. State law can also vary on third-party case procedure and damages available in a negligence case.

Employment law issues

As reported, many flight attendants have been reluctant to report concerns over the uniform because of fear of retaliation. I am not sure that concerns over the uniform would be covered under the OSHA whistleblower laws. But reporting of unsafe conditions could be covered by state whistleblower laws. Many states also protect employees against retaliation for reporting a work injury ro claiming workers’ compensation. Again jurisdiction would be an important concern.

The article mentioned Delta requiring attendants who did not want to wear the uniform to fill out a reasonable accommodation request under the Americans with Disabilities Act. I believe requiring such formality may run afoul of the Americans with Disabilities Act (ADA).

Last year, a federal court in Nebraska ruled a Wal-Mart employee could proceed to trial on an ADA claim because he didn’t want to wear a long butcher coat that got stuck in his wheelchair. The individual in that case needed a wheelchair because of a disability. The court believed the long butcher coat could cause a safety hazard. The court believed there some evidence the employer didn’t accomodate disability because of failure to allow the employee to alter his uniform. The similarity in the two cases is that when a uniform or part of uniform is a problem for an employee, it can be an easy fix for an employee – change the uniform. Many Delta flight attendants are requesting to wear the old, non-toxic, uniform. That would be simple fix, but that simple fix could be complicated by the formal, time consuming and paperwork heavy accomodation processes required by some employers.

I also believe that sex discrimination could be an issue if women are forced to wear toxic uniforms while male employees don’t have the same requirement.

Collective and class action issues

A theme running throughout the story, is that since Delta is a non-union employer many employees are afraid to speak up about the uniform. I find those fears about retaliation in a non-union workplace to be valid. I also think that many of issues relating to employment law and defective manufacturing may have to be addressed in class action claims since they could affect so many employees.

Support Mike Elk and Pay Report

Many law blog posts end with a pitch. My pitch is to support the excellent reporting and writing by Mike Elk at Payday Report. This isn’t the first time I’ve cited his reporting on my blog. His reporting has changd how I think about some workplace issues. Mike covers the kind of stories that need to be covered and understands the importance of civil rights, safety and labor laws in the workplace. He deserves your support.

How do mental injury claims for first responders work?

Posted on April 1, 2019 by Brody Ockander

This is a good story about a paramedic in Nebraska who struggled to obtain workers’ compensation benefits for a mental injury he sustained while on the job.

This firm is proud of the fact that we have compensable mental injury claims for first responders in Nebraska. Our firm helped draft legislation which amended Neb. Rev. Stat. 48-101.01 to provide workers’ compensation benefits for mental claims without the need for an accompanying physical injury. In the article linked above, prior to 2010, the injured paramedic would not have been entitled to any workers’ compensation benefits for a strictly mental claim (without physical injury), including no treatment or counseling.

This is good to keep in mind during the current flooding throughout Nebraska: where there is potential for volunteer firefighters and first responders to get injured. Injured volunteer firefighters are also covered under the Workers’ Compensation Act: including mental claims for those volunteer firefighters.

Fortunately, we do have coverage for mental claims in Nebraska, but unfortunately not every employee is covered for only mental (called mental-mental) claims without a physical injury. Other lawyers at this firm have speculated that this is strictly a political decision.

Although mental-mental claims are covered in Nebraska, what kind of benefits are employees entitled to, who suffer from mental injuries? The benefits for mental injuries are the same for any physical injuries. The injured employee is potentially entitled to: 1. Medical Treatment; 2. Temporary Disability benefits while off of work; 3. Permanent Disability benefits; and 4. Vocational Rehabilitation. n the article, the injured paramedic was seeking payment of treatment for his mental injuries: including treatment that was specialized for mental injuries suffered by paramedics. The paramedic was also fighting for temporary disability payments while he was off work because of the injury.

One of the main issues for the mental claim discussed in the article, hinged on what kind of treatment was reasonable and necessary as a result of the work injury. Specifically, the City of Lincoln argued that a service dog for Post-Traumatic Stress Disorder was not reasonable and necessary care. While the paramedic, and his therapist, insisted that the service dog was necessary care as a result of the accident. The questions for reasonable and necessary treatment is whether the treatment is required by the nature of the injury to relieve pain or promote and hasten the employee’s restoration to health and employment.

The article concludes with a somewhat happy ending, despite the circumstances. However, without workers’ compensation benefits for mental injuries, this story could have turned out much worse. Who knows what would have happened to the injured paramedic without the mental treatment he so obviously needed? Fortunately, we’ll never know. Now, Nebraska just needs to extend those mental injury benefits to all employees in all types of employment.

What happens when an injured worker misses a medical appointment?

Posted on March 21, 2019 by Jon Rehm

Missed medical appointments can effect a workers’ compensation claim

Injured workers may have to deal with scheduling medical appointments with multiple providers and all the other juggling of work schedules, travel and child care arrangements that go with seeing multiple doctors.So what happens when an injured worker misses a medical appointment?

Neb. Rev. Stat. 48-120 allows the Nebraska workers’ compensation court to reduce benefits if an employee refuses medical treatment provided by an employer. Likewise Neb. Rev. Stat. 48-134 allows the court to suspend benefits due if an employee refuses a medical examination requested by the employer/insurer. But even if a court reduces benefits for a refusal of medical treatment or a medical examination, that refusal of treatment or an examination would not effect whether a claim is covered by workers’ compensation.

Even if missed appointments don’t lead direcrly to denial of benefits, missing medical appointments can be used as a way to attack the credibility of an injured worker in court.

Unintentionally missing a medical appointment wouldn’t be a refusal of treatment, but I have seen insurers, particularly third-party claims administrators, deny claims where an employee misses a medical appointment for whatever reason.

Very rarely do I see my clients refuse medical treatment. Often times clients are talking to me until after care has been denied for whatever reason. But I often have clients who are suspicious of medical examinations set up by their employers for litigation purposes. I don’t blame them.

Why employers have broad authority to examine injured workers.

Neb. Rev. Stat. §48-134 requires injured workers to submit to a reasonable medical examination and deems an “unreasonable refusal” to submit to an examination as reason to deduct from compensation of an injury. The Nebraska Workers Compensation Court has also adopted the Nebraska Rules of Civil Discovery through NWCC Rule 4. Rule 6-335 allows a defendant to have the plaintiff to submit to an examination upon showing of just cause. A refusal of an injured worker to submit to an examination set up by their employer could also lead to financial sanctions under Rule 6-337.

Why it’s more difficult for an injured worker to get a medical examination in Nebraska.

In my experience, it is hard to quash a medical examination in a contested case. But if a plaintiff wants a medical examination under Neb. Rev. Stat. 48-134.01, it’s a different story. In order for the plaintiff to obtain a court ordered IME at the expense of the defendant, the plaintiff needs to establish medical causation and show there is some dispute between doctors that an independent medical examiner can resolve. Plaintiff’s can find some leverage under Neb. Rev. Stat. 48-120(5) which gives the court some authority to order medical examinations on their own outside the medical examination statutes at 48-134 and 48-134.01.

Recently an Ohio court suspended a claim for an employees refusal to submit to a psychological examination. I am fairly certain a Nebraska court would have ruled the same way as the Ohio court.

The recent Ohio case concerned an employee who was seeking medical treatment for psychological injuries. Such a case would be difficult to bring in Nebraska. In Nebraska when medical treatment is sole issue in the case, there must be a court-appointed medical examination before an employee can file a petition.

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.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: Workers’ Compensation

I don’t care what you heard on NPR. Walmart isn’t getting rid of greeters.

When active shooter drills lead to workplace injuries

Toxic uniforms create health hazards, legal issues for Delta flight attendants

How do mental injury claims for first responders work?

What happens when an injured worker misses a medical appointment?

Could suicide nets be coming to American workplaces?

What is an accident in workers’ compensation?

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