Tag Archives: attorney fees

Still getting medical bills after going to court and winning a workers’ compensation case?

Posted on August 1, 2019 by Jon Rehm

Getting a collection notice for a bill that was ordered to be paid by a judge is like a bad horror movie sequel

How can an injured worker go to trial, have the court order payment of disputed medical bills, have their employer pay the bills they were ordered to pay, but still be receiving medical bills? It’s like a horror movie or franchise where you think the villain is dead but keeps coming back to life.

Here’s the why and how it can happen in Nebraska.

Neb. Rev. Stat. 48-120(8) allows the court to order that an employer can pay bills through the so-called fee schedule or that employers reimburse other payors. Those payors are either the injured worker or a health insurer that paid a bill that was part of the workers’ compensation case.

Recently I encountered a situation where the court ordered the employer to reimburse a health insurer who had paid some bills in a disputed workers’ compensation case. The employer paid the health insurer, but then the health insurer decided that since the expense was related to a work injury that they could reverse the payment they made to the provider originally.

So, the medical provider attempts to collect the balance from my client. My client was confused and upset because they were getting collection notices for a case where the court had ordered that medical bill to be paid.

What is the solution for the client in this situation? In Nebraska the most leverage a plaintiff would have would be the penalty and fee provisions under Neb. Rev. Stat. 48-125. Once the employee gets the bill, thy should send to their attorney who will put the employer on notice that the medical bill remains unpaid after it was awarded. That puts the onus on the employer to pay within 30 days or be subject to an award of attorney fees under 48-125.

Medical providers and third-party payors don’t have standing to litigate in the Nebraska Workers’ Compensation Court, so I question whether the Nebraska Workers’ Compensation Court would have jurisdiction over them or what relief it could order against them even if it did.

The employee could have a case directly against their health insurer for breach of contract. Since health insurance payments are wages under the Nebraska Wage Payment and Collection Act, there could be a cause of action under that law as well. But in a case of relatively small-time graft by a health insurer, it might not be worth an attorney’s time or even filing fees to bring a case.

The best prevention for this situation would be to have the court order that bills be paid directly to the provider under the fee schedule. But there isn’t any Nebraska case law about when to pay bills under the fee schedule or when a payor should be reimbursed. I’ve had employers balk at being asked to pay at the fee schedule rate rather than to reimburse a third-party payor. In cases involving Medicare and Medicaid the reimbursement rate is generally much less than the workers’ compensation fee schedule rate, so paying at the fee schedule means the employer pays out more.

Injured workers’ may also want the faster reimbursement afforded to them when the court orders an employer to pay them back for any out of pocket medical expenses. If bills are paid under the fee schedule, then medical providers have to reimburse other payors. This can delay repayment and unscrupulous providers may try to pocket payments or double bill workers compensation and health insurance and/or the injured worker.

In the last legislative session, Nebraska passed bills that going forward will limit the ability to collect medical bills that are related to a workers’ compensation claim. However those protections only extend throhg final adjudication of a case. In a case where a health insurer reversed payment to a provider when they had been reimbursed through workers’ compensation after an awarded case, a provider would be free to collect an unpaid balance.

Will worker-friendly prosecutors be stymied by the 8th Amendment?

Posted on June 27, 2019 by Jon Rehm

Newly elected Queens County NY District Attorney Tiffany Caban vows to crackdown on wage theft

Newly elected Queens County District Attorney Tiffany Caban vowed to step up criminal enforcement of wage theft. But prosecutors wanting to use the criminal justice system to push for workplace justice may be blocked by arguments adopted by the Colorado Supreme Court recently.

The Colorado Supreme Court held that a $841,200 fine to an employer for not having workers’ compensation insurance violated the excessive fines clause of the 8th Amendment. Colorado imposes a fine of between $250-$500 per day for every day an employer does not have workers’ compensation insurance.

The Colorado court found lower courts erred as a matter of law in not applying Supreme Court precedent stating that fines could be challenged if they were clearly excessive. The Colorado court found that there was an insufficient record to determine whether the fine actually was clearly excessive and sent the case back to the trial court for a factual determination.

While not controlling in other states or jurisdictions, the Colorado decision would likely be persuasive in jurisdictions, such as Nebraska, that impose daily fines on employers for not having workers compensation insurance.

But even if Nebraska did adopt the Colorado fine decision, I question somewhat the practical effect of the decision. Employers are rarely fined for not having coverage. Colorado employers still bear the burden of contesting their fine on a violation by violation or day by day basis. But this would also place a burden on prosecutors to prove violations on a day by day or violation basis. I believe this would discourage prosecution under Nebraska’s law as Nebraska law vests sole authority to prosecute fine cases to the Attorney General. The law also give doesn’t make prosecution mandatory.

My view is that the Colorado decision would be less persuasive in challenging penalties and fees awarded to employees under Neb. Rev. Stat. 48-125.

The Supreme Court has held that while civil fines are still fines under the 8th Amendment, fines do not include punitive damage awards in civil cases. Fines are limited to money paid to or taken by the government.

Neb. Rev. Stat. 48-125 awards penalties and attorney fees to employees where there is no reasonable controversy of fact or law as to an award of medical or disability benefits. No reasonable controversy is a difficult standard for an employee to meet. Penalties and fees under 48-125 serve as a substitute for a bad faith action in Nebraska.

Since penalties and fees are awarded directly to parties and they serve as a substitute for damages that could be awarded in a civil case, there is a good argument that penalty and fee awards under 48-125 would be immune from an 8th Amendment challenge.

On the flip side, since Nebraska doesn’t allow for punitive damages in civil cases, a narrow reading of Supreme Court precedent on fines might open up an 8th Amendment challenge. The fact that Nebraska doesn’t allow for punitive damages would give Nebraska employers a stronger argument to challenge an award of penalties and or fees under 48-125 as excessive.

Previously I wrote about how employee benefit plans under ERISA can complicate the resolution of workers compensation claims. Employees have the ability to have a court fine an insurance plan for not providing a copy of the benefit plan. This leverage may be lessened if more courts adopt the reasoning of the Colorado Supreme Court about fines.

Lawyers for injured workers should be proud of the success we have had making constitutional challenges to anti-worker changes to state workers’ compensation laws. But last year I wrote that the defense bar could also mount constitutional challenges of their own. They succeeded in Colorado. Hopefully legislators in Colorado will fix a decision that makes it harder to punish deadbeat employers who don’t provide workers compensation insurance to their employees.

One way to make fines pass constitutional muster would be to allow injured workers to share in the fine. This would probably mean changing fine statutes to allow for private prosecution, but if it was coupled with what amounts to a bounty it could mean more aggressive prosecution employers who didn’t get workers’ compensation insurance. In states like Nebraska, that don’t allow for punitive damages, I also think an award of a set general damage to a plaintiff where the employer didn’t have insurance would help penalize scofflaw employers.

On Monday, I wrote about my reluctance to criminalize workers’ compensation fraud. Allowing employees expanded civil remedies against employers who don’t carry insurance may be more effective in combating this form of workers’ compensation fraud. It may also be more permissible from a constitutional perspective.

But from a practical standpoint I am well aware of the leverage that criminal prosecution gives to an employee-side attorney in a wage and hour case. I represented an employee who was paid nothing for several weeks of sales work, Nebraska doesn’t have a so-called outside sales exception, so the emplyoer had no defense to not paying my client. Furthermore, Nebreska has tough language in our wage and hour act stating that county attorneys shall prosecute violations of the law. I hope newly elected pro-workers prosecutors will be willing to partner with civil attorneys in cracking down on wage theft.

Nebraska Supreme Court rules on employment risk, attorney fees and third party claims

Posted on September 24, 2018 by Brody Ockander

The Nebraska Supreme Court has made three recent rulings about workers’ compensation

Three important cases have recently come down from the Nebraska Supreme Court regarding workers’ compensation claims.

Probably the case with the biggest impact is Maroulakos v. Walmart case. In that case, the Supreme Court affirmed a decision by the trial court that found that an injury was not compensable when a worker was injured because of an “idiopathic” fall. What makes this case distinct from its predecessors is that it appears as though there was possibly evidence that there was an increased risk to the injured worker, which could have made the idiopathic fall compensable. However, the trial court did not explore that option and the Supreme Court found that it could not make a determination on an issue that was not at issue during the trial court. In other words, it appears that the Maroulakos case puts an extra burden on the Plaintiff to ensure that an “increased danger” analysis is overtly pled and argued at trial for idiopathic falls. The concurrence in that opinion hints that the at the trial court level, the court probably should have conducted an analysis as to whether there was an increased-danger when there was evidence presented that could contribute to that analysis of an idiopathic fall.

Another recent case was Dragon v. Cheesecake Factory. In Dragon, the work comp case reached a settlement that was accomplished via a settlement release under Section 48-139(3). The settlement was not paid, however, within the 30-day limit proscribed in 48-139(4) and thus, the Plaintiff argued that he was entitled to a 50% penalty for the late payment. The trial court denied the penalty under a theory that it did not have authority to award a penalty after the release had already been signed. The Supreme Court overturned the finding of the trial court and awarded the penalty based on the fact that the Nebraska Legislature cleared up any ambiguity in the statute in awarding penalties for settlements that are not paid within 30 days.

The final case that recently came down worth discussing is Gimple v. Student Transp of America. In Gimple, there are two take-aways. First, if there is a third-party action, along with the work comp claim, the Work Comp Court does not authority to make a determination of future credits for the employer or work comp carrier based on any monies paid in that their-party action.

Second, if there is a stipulation and no dispute as to an injury; then, there is a permanent impairment assigned to that injury, the Defendant must pay the permanent partial disability in a timely manner, within 30 days. In other words, there is no reasonable controversy.

Irregular shifts complicate workers’ compensation claims

Posted on May 14, 2018 by Jon Rehm

Irregular work hours, driven increasingly by automated scheduling, have lead San Francisco and Seattle to pass municipal ordinances to regulate the practice because irregular schedules make child care, transportation and working multiple jobs increasingly difficult for low wage workers.

Irregular hours also increase the risk of work injury and they can complicate the claims of injured workers. Here are a few ways irregular working hours can impact a workers’ compensation claim:

Benefit rates

Workers compensation disability benefits are paid based on a workers’ average weekly earnings or their average weekly wage – AWW for short. But when you work 40 hours one week and eight the next, what’s your average work week? Mathematically, in this scenario the average week would be 24 weeks. An insurance company would likely use a simple average.

But under Nebraska law a court is supposed to exclude abnormally low weeks from the calculation of average weekly wage. In other words if the case is pushed into court, a Judge will exclude abnormally low weeks which would lead to a higher benefit rate.

Many employers also pay shift differential where night and weekend shifts get a higher hourly wage. Effective hourly wages can vary from week to week for employees who work irregular shifts that include night and weekend shifts.

Nebraska excludes overtime premium in general from AWW, but shift differential still counts. Sometimes insurance companies will exclude shift differentials from their calculations of average weekly wage. This is particularly true when insurers are calculating permanent disability benefits.

It is also common for workers who work irregular shifts to work less than 40 hours a week. For the sake of permanent disability benefits, Nebraska assumes a minimum of a 40-hour work week . Insurers will often not follow this rule. Irregular shift workers are not the only workers who are subjected to this practice, but when you combine exclusions of shift differential along with not using a 40-hour week, irregular shift workers can get substantially underpaid when it comes to workers compensation.

Our firm, like most other firms, represents injured workers on a contingent fee basis. The problem with that arrangement is that while an under payment of benefits may be a meaningful amount of money to an injured worker, it may not be enough for an attorney to justify taking on an underpayment claim on a contingent fee basis. Most state and federal wage and hour laws allow for fee awards that can be many times the unpaid wages. The reason for attorney fee awards in this case is the important public purpose of these laws.

Workers compensation has the same general purpose of as wage and hour laws, but in Nebraska it is difficult to get attorney fees in a disputed workers compensation case because an award of penalties requries a lack of a reasonable controversy. Conventional wisdom is that employees must show a lack of reasonable controversy to win attorney fees. However, some case law seems to distinguish the standard for winning a penalty versus winning an attorney fee.

Medical appointments

Irregular shifts also make it difficult to schedule medical appointments. This is particularly true of specialists who would be treating a more serious work injury. Missing appointments can be a red flag for judges, doctors and insurers if not explained. A good attorney can help an injured worker explain how an irregular work schedule prevented them or interfere with the. from attending medical appointments.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: attorney fees

Still getting medical bills after going to court and winning a workers’ compensation case?

Will worker-friendly prosecutors be stymied by the 8th Amendment?

Nebraska Supreme Court rules on employment risk, attorney fees and third party claims

Irregular shifts complicate workers’ compensation claims

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