Category Archives: Workplace Injury

Fault Doesn’t Matter in Workers’ Compensation, Except When It Matters

Posted on August 18, 2016 by Jon Rehm

Workers’ compensation law is founded on a compromise where employees give up the right to sue their employers for negligence in order to receive relatively certain benefits. What plaintiff’s lawyers like me don’t often say is that workers can generally collect benefits if they share some – or even all of the blame – for a work injury.

But the idea of fault has not been entirely erased from workers’ compensation law. Our colleagues at The Jernigan Law Firm in North Carolina recently discussed in a blog post how employer violations of safety rules could lead to increases in benefits, while employee violation of safety laws could lead to decreases in benefits.

Nebraska does not increase or decrease benefits based on safety-rule violations like North Carolina, but Nebraska does allow employers to avoid paying benefits if they can prove a worker’s willful negligence or intoxication was the cause of the work injury. This is a difficult burden for an employer to meet, but employees can still lose cases based upon willful negligence.

If an employer is going to claim a worker was willfully negligent because of a safety violation, a court will consider five factors as to whether an employee was willfully negligent. These factors are

whether the employer had a reasonable rule designed to protect the safety and health of the employee
whether the employee was on notice of the rule
whether the employee understood the danger involved by violating the rule
whether the rule was kept alive by bona fide enforcement and
whether the employee had an excuse for the rule violation.

Whether an employee willfully violated a safety rule is a question of fact that depends on the circumstances and the credibility of the parties testifying in a case.

Nebraska law holds that ordinary negligence by a worker is not a bar to benefits. But an employer can delay benefits under the argument that but for the employee’s negligence, the employee’s injury could have been accommodated. That is an open question under Nebraska law. But if there is no question that an employee cannot work, and the worker is fired for negligence in connection with a work injury, the employer should still have to pay benefits.

Intoxication is often grouped with willful negligence under Nebraska law. It is very difficult for an employer to deny benefits based on intoxication causing the work accident. Another issue related to intoxication is when an employee tests positive for drugs after a work accident even if there is no evidence of intoxication at the time of the injury. A positive drug test will not bar an employee from receiving workers’ compensation benefits in Nebraska, but it could delay lost time or temporary disability benefits if an employer argues that temporary restrictions could be accommodated but for the employee’s termination for cause.

If an employee is not at fault for an injury, there may be other ways for an employee to be compensated. If an injury is caused by the negligence of a third party, the employee can sue that third party. If an employer retaliates against an employee for reporting an unsafe working condition that causes an injury, then the worker could pursue a retaliation case. Employees should also be skeptical if they are wrongfully blamed for a work accident, as this could be a form of retaliation. Another possible form of retaliation is when an employee is fired for having a work injury as a probationary employee or having too many injuries, regardless of fault.

What Does this Improper Medical Treatment Sanction from OSHA Mean?

Posted on August 8, 2016 by Jon Rehm

For the first time ever, the Occupational Safety and Health Administration recently sanctioned a Pilgrim’s Pride chicken processing plant for providing improper medical treatment for employees suffering from overuse injuries. While the hazards of meatpacking work to employees is common knowledge and the packing industry is frequently sanctioned for unsafe work practices, the sanction against Pilgrim’s Pride for failing to provide medical care to their workers in Florida indicates OSHA is opening a new front in the battle for a safe workplace.

While OSHA’s sanctioning Pilgrim’s Pride for providing inadequate medical care to their injured workers is novel, their action is consistent with law that states access to prompt and appropriate medical care is crucial to pursuing a workers’ compensation claim. OSHA sanctioned Pilgrim’s Pride for failure to make timely and proper referrals to specialists for orthopedic injuries when employees sought treatment at company first-aid or nursing stations. According to OSHA, delays in treatment can lead to permanent injuries.

The fact that OSHA deems inadequate medical care to be a violation of its regulations could also mean that employees have a statutorily protected right to oppose inadequate medical care. In Nebraska, this would mean that employees could possibly sue their employers under the Nebraska Fair Employment Practices Act. Celeste Monforton, a professor of public health at George Washington University, noted in her post that employers use company health clinics not only to delay treatment but to discourage employees from seeking medical care. Some employers go so far as to discipline employees who do not get permission from their employer to seek outside medical treatment. A recent case in an Illinois federal court stated such policies were illegal.

While Nebraska does not have any case law similar to Illinois about such policies, there is a strong argument to make that such policies would be illegal under Nebraska law and under the law of any state that prohibits retaliation against employees for filing workers’ compensation claims. Policies that require notification and permission to seek medical treatment from employers could also run afoul of Nebraska’s laws allowing employees to choose their own doctors. One Nebraska court has hinted that the right to pick a doctor is a legally protected activity.

Monforton also pointed out that Pilgrim’s Pride could be committing medical malpractice by failing to provide proper care and having nurses treat injured employees without proper medical supervision.

However, packinghouses have some reason to believe that they are immune from medical malpractice suits filed by their employees against their employee health nurses. The legal shorthand for this is called the exclusive remedy. In practice, this means that an employer who provides medical treatment in a negligent manner to an employee who is treating for a work injury can only be sued in workers’ compensation court.

Of course, there are some ways around the exclusive remedy for medical care. The first exception would be that if employee health was outsourced. This would allow an employee to sue that provider directly and could also allow for a civil conspiracy or civil RICO claim.

There may also be other exceptions as well. For example, Nebraska has a Meatpacking Industry Workers Bill of Rights that states that workers employed at covered meatpacking houses have a right to a safe workplace and the right to seek benefits, including workers’ compensation. If an employer does not provide adequate medical care or provides negligent medical care, that could certainly violate the public policy behind the Meatpacking Industry Workers Bill of Rights and warrant a tort case against the packinghouses under the public policy of the state of Nebraska.

Workers’ Compensation Claim May Lead to Other Claims, Too

Posted on August 4, 2016 by Jon Rehm and Emily Wray Stander

Two recent incidents involving truckers and grain-processing plant workers in Nebraska make clear that work injuries don’t always just involve workers’ compensation claims. Workers’ compensation claims can lead to claims of negligence by third parties and/or develop into claims against employers for retaliating against employees.

The fundamental idea of workers’ compensation is that an employee can be compensated by the employer, regardless of fault, for a work injury. In exchange, the employee agrees to damages that are capped by law. However, if an injury is the fault of someone besides the employer, then that party can be sued for negligence. Such an incident may have happened in Lincoln earlier this week. One person was in critical condition at the hospital after he was hit while unloading a parked semi-trailer, according to this article.

“… the driver of a Freightliner full-sized delivery van reversed out of the loading dock area of Hy-Vee. As he backed up, he checked his mirrors but didn’t see another man unloading a parked semi-trailer, who was also delivering product to the store, Officer Katie Flood said.”

It appears that Mr. Scott L. Johnson, the 51-year-old Lincoln man who was hit, was the driver of the semi and was pinned between the van and his rig.

“He was out of surgery and in critical condition at Bryan West Campus Monday night, Capt. Bob Farber said.”

The incident at the Hy-Vee loading dock in southeast Lincoln just illustrates the danger posed to truckers and workers who load and unload trucks and rail cars. This danger was highlighted by the Occupational Safety and Health Administration’s proposed fines to sanction a firm in Alliance, Nebraska, for unsafe conditions in a grain processing plant. OSHA’s Local Emphasis Program for Grain Handling hazards led to the inspection, where investigators found 17 violations and proposed $61,000 in fines.

Violations included “fall hazards up to 15 feet while accessing the tops of rail cars and from ladderway openings and platforms lacking guardrails and open-sided work platforms …”; “grain dust explosion hazards …”; “personal protective equipment needs were not evaluated …”; and “lack of an occupational noise monitoring program including audiometric testing, noise monitoring and fitting and correct use of hearing protection …” were found, among other concerns.

“New Alliance handles and processes Great Northern and Pinto dry edible beans at locations in Alliance, Bridgeport, Gering, Hemingford and Mirage Flats. The company is a division of Alliance-based Western Cooperative Company known as WESTCO,” according to this news release.

An employee who reports an injury from an unsafe condition might also be opposing potentially illegal conduct by an employer and could have a claim beyond just a work-injury claim. These claims can often arise when employers discipline or terminate employees if they are believed to have been at fault for an injury. If you are being blamed for a work injury by your company, that shouldn’t stop you from filing a workers’ compensation claim, because fault shouldn’t matter in a workers’ compensation case. If you are being blamed for an injury, you might also be able to pursue a retaliation case.

Trouble Flexing Your Foot Up? You May Have Foot Drop.

Posted on July 31, 2016 by Rod Rehm

Today’s blog post was written by Anthony L. Lucas from The Jernigan Law Firm in North Carolina. I think that consumers and those who have loved ones with this condition will find this information useful. Just like in a previous blog post that Mr. Lucas wrote, it is helpful to have more details about a medical concern, so a person can have the knowledge to ask questions for greater understanding of a person’s individual situation.

Though each case’s details are different, in general, if foot drop is a result of you or your loved one’s work-related injury, it is more than likely covered by a state’s workers’ compensation laws. There are some exceptions in Nebraska, so please contact a lawyer who is familiar with your state’s workers’ compensation system for more information and with your specific details.

Foot drop describes the inability of a person to lift his or her foot at the ankle due to weakness or paralysis of the muscles that lift the foot. Foot drop can be caused by several things including: an injury to the spinal cord, an injury to the nerve that controls the muscles involved in lifting the foot during hip or knee replacement surgery or during intramuscular injections, ALS, multiple sclerosis, Parkinson’s disease, or muscular dystrophy.

Symptoms of foot drop include dragging your foot on the floor when you walk, walking like you are climbing stairs to prevent your foot from dragging, and numbness on the top of your foot and toes. Treatment options depend on the cause and severity of a person’s drop foot and include orthotics such as braces or foot splints, physical therapy, or surgery including decompression, nerve sutures, nerve grafting, nerve transfer, or tendon transfer.

Depending on the cause of a person’s foot drop, it may not be a lifelong disability. If the underlying cause is trauma or nerve damage it is possible for a person’s foot drop to improve or go away completely; however, if the underlying cause is a progressive neurological disorder, foot drop will likely continue as a lifelong disability.

I Can’t Do My Old Job, So I Qualify for Disability, Right?

Posted on July 7, 2016 by Roger Moore

It’s not uncommon for workers to expect to qualify for disability when they are unable to work in a job that they have held for years. The question becomes does that mean they are disabled under Social Security Administration rules? As in most cases in dealing with the law, the answer is maybe!

For workers under the age of 50, applicants must prove that they are also unable to obtain any work in the general economy, even if they can’t do their typical jobs. This includes unskilled work, and the SSA makes no distinction for what type of pay cut a worker must accept to remain gainfully employed. For instance, let’s assume a worker was earning $20 an hour as an electrician, but could no longer handle the rigors of that employment. If that person can do a minimum-wage job full time or at the level of substantial gainful employment as set by the SSA, then a person is not considered disabled under the SSA rules. Many people are surprised that the SSA would require this. Even if jobs don’t exist within the current labor market, the SSA would require a worker to move herself to a larger market to continue to be employed.

For individuals over the age of 50, the primary question is did they acquire skills from prior employment that would enable them to transition into other employment areas. If those skills would allow the worker to transition to alternate employment, then they are not considered disabled. If those skills are too specialized and don’t easily transition to alternate employment, the worker may very may well be disabled, according to SSA rules.

Summer Jobs for Teens: Be Aware

Posted on June 30, 2016 by Todd Bennett

As summer has hit in full force, many teens are excited to have their first real jobs. Unfortunately, some will be hurt, possibly seriously. Young workers have a higher rate of getting hurt on the job than older adults. Teens new to the workforce feel that they have to say yes to every task they’re assigned. Often, they just aren’t trained to do what they have been asked to do.

Teens’ parents should make sure young workers get the training they need but also be aware and know their rights, especially for those teens who have entered the workforce for the first time or have taken on new responsibilities as they have gotten older. Parents and teens should always ask questions, especially when they’re concerned for safety.

A common theme for parents of kids who have been injured is to find out what your child has been assigned to do, and sit down with your child and find out if there are dangers involved. Ask your teen about the equipment used on the job and whether he or she has been asked to do anything unsafe. Tell your children that no job is worth their life.

All workers have a right to appropriate training and can refuse work assignments that are unsafe.

In Nebraska …

Federal hour restrictions for children 14 and 15 years old are: not over 3 hours on a school day; not over 18 hours in a school week; not over 8 hours on a non-school day; not over 40 hours in a non-school week; and not before 7 a.m. nor after 7 p.m. (9 p.m. from June 1 through Labor Day). For more federal regulations, click here.

Children under 16 years old may not be employed in any work that is dangerous to life or limb, or in which the child’s health may be injured or their morals depraved.

The law allows 14- and 15-year-olds to perform tasks such as office work, cashiering and stocking shelves, but they can’t cook, bake or use power equipment.

Youth ages 16 and 17 may do more at work, but there are still restrictions. They can’t operate or work around heavy, moving equipment. They’re also not allowed to use equipment like meat slicers or meat grinders.

Employers must have a minor work permit endorsement on their business license to legally hire teens.

The Department of Labor may issue a special permit to allow the employment of 14- and 15-year-old children before 6 a.m. or after 10 p.m. provided there is no school scheduled these days and after an inspection of the working conditions at the business location. Special permits may be issued for up to 90 days and may be renewed.

Be excited for your children as they enter young adulthood, but know of the dangers that can be presented, and do not fear asking tough questions and researching your child’s employment tasks. Their life and limb may depend on it.

How Schedule Member Injuries Are Paid in Nebraska

Posted on June 26, 2016 by Brody Ockander

When an injured worker has reached a point of maximum medical improvement – when healing has plateaued – that worker may be entitled to permanent disability benefits.

If the injury sustained is not an injury to the truck of the body (head, neck, back, internal organs, etc.), it is considered a “scheduled member” injury in Nebraska. Compensation for these scheduled member injuries are paid based on the level of disability to that member. Then, the Nebraska workers’ compensation laws prescribe a certain number of weeks of benefits depending on which body part has sustained the permanent disability.

The benefits are paid at 2/3 of the worker’s average weekly wage, for whatever percentage of disability is assigned. For example, a 10 percent impairment to a shoulder in Nebraska is paid at 2/3 of the average weekly wage for 22.5 weeks. This is based upon the chart below where a shoulder is worth a total of 225 weeks (i.e. 225 x 10% = 22.5 weeks). See the chart below to see how other body parts are paid in Nebraska: Source: Nebraska Revised Statute § 48-121

Body Part	Number of Weeks
Thumb	60
Index Finger	35
Second(Middle) Finger	30
Third (Ring) Finger	20
Fourth (Little) Finger	15
Amputation at First Phalange	(half weeks for that finger)
Amputation ½ of First Phalange	(quarter weeks for that finger)
Big Toe	30
Any Other Toe	10
Hand (below elbow joint)	175
Arm (at or above elbow)	225
Foot (below knee)	150
Leg (at or above knee)	215
Loss of Eye or Reduction of sight to 1/5 normal	125
Hearing Loss (one ear)	50

Generally, any body part not listed above (head, neck, or back, as examples) would be considered and injury to the “body as a whole” and is paid differently.

Cutting Corners in Construction Costs Lives

Posted on June 23, 2016 by Rod Rehm

Today’s blog post was shared by the U.S. Labor Department and comes from blog.dol.gov

This is quite the article that looks at the journey of keeping one Florida construction company accountable for workers’ safety. The original incident sadly resulted in one worker’s death and 20 workers’ injuries. The company, Southern Pan, when faced with a $125,000 fine, went through the appeals process to try to avoid paying the full fine. The company’s lawyers were successful, so the Labor Department’s lawyers appealed, and after eight years of the process, this happened: “… an administrative law judge affirmed OSHA’s citations and ordered the company to pay the full penalty of $125,000.”

Although this situation happened in Florida, deaths because construction businesses took shortcuts in safety are all too common. Here’s a link to a blog post from 2015 that was a follow up to an OSHA investigation in Nebraska where one worker died and another was seriously injured when their employer didn’t provide any fall protection and the workers fell 16 feet off a roof.

“According to OSHA rules, employers have the responsibility to provide a safe workplace.”

This thought was highlighted in a previous blog post from a guest author Catherine Stanton, who works at a New York City law firm. In her blog post, she wrote about the need for safety enforcement in construction and other industries.

As I wrote in a recent blog post, violating safety codes are unlawful acts.

“As a representative of injured workers, I have seen hundreds, if not thousands, of work injuries or deaths caused by gross disregard of safety codes and regulations by employers.”

If a business follows OSHA regulations – many of these construction deaths, whether in trenches, as a result of falls, or when a company completely disregards the safety of its workers like in Florida – should be preventable.

It would take a much longer discussion to debate how to make these businesses understand even part of the loss that the loved ones of the workers who died feel, and you can read a few thoughts on this topic at this recent blog post. Because everyone should be able to return home to their loved ones after an honest day’s work.

an image of the collapsed parking garage

In the construction industry, precision matters – corners need to be square, lines have to be level and plans must be followed. Following the rules keeps buildings and people safe. But when construction companies cut corners, workers often pay the price.

That is exactly what happened in Jacksonville, Florida, in December 2007. A construction company called Southern Pan thought eliminating basic safety procedures would save time and money. The result? A six-story parking garage came crashing down, killing one worker and injuring 20 others. The worker who was killed, Willie Edwards, was only there that day because he decided to pick up an extra shift to buy Christmas presents for his children.

This horrific tragedy could have been easily avoided.

The Occupational Safety and Health Administration enforces construction standards designed to keep workers safe from building collapses like this. To keep a building from collapsing during construction, a process called “shoring” is used, which involves wood or steel beams to help support the weight of concrete and other construction loads.

In violation of OSHA’s construction standards, Southern Pan chose to remove most of the shores from the first two floors of the parking garage, ignoring blueprints that required all shoring to remain from top to bottom until the building was completed. The company then knowingly permitted workers, including Edwards, to work in the…[Click here to see the rest of this post]

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

Published by:

Category Archives: Workplace Injury

Fault Doesn’t Matter in Workers’ Compensation, Except When It Matters

What Does this Improper Medical Treatment Sanction from OSHA Mean?

Workers’ Compensation Claim May Lead to Other Claims, Too

Trouble Flexing Your Foot Up? You May Have Foot Drop.

I Can’t Do My Old Job, So I Qualify for Disability, Right?

Summer Jobs for Teens: Be Aware

How Schedule Member Injuries Are Paid in Nebraska

Cutting Corners in Construction Costs Lives

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this: