Tag Archives: Nebraska

Mold on the job: not just workers’ compensation

Posted on January 17, 2019 by Jon Rehm

Mold doesn’t have to be this obvious to be harmful in the workplace.

Teaching is not thought of as a hazardous job, but 120 teachers in Stamford, Connecticut have filed workers compensation claims due to mold exposure that effects half of the buildings in their district.

Mold is a relatively common hazard for white collar employees. When mold infests a building, it is common to have many employees affected. Mold is sometimes visible other times it can be hidden in insulation. Mold exposure is typically thought of leading to hayfever like allergic symptoms, but it can also lead to symptoms like chronic fatigue, irritable bowel syndrome and weight gain. About 25 percent of people are especially sensitive to mold and that sensitivity can be tested for by doctors.

In Nebraska, an employee just needs to show that an occupational factor or factors were a contributing factor to the injury. An employee exposed to mold in Nebraska should be able to collect workers’ compensation benefits for mold exposure even if they had pre-existing allergies or mold sensitivity. But other states have more stringent causation standards, so it could be harder to receive workers’ compensation benefits for mold exposure in those states.

The mass mold exposure by teachers in Stamford, Connecticut raises many interesting legal issues outside of workers’ compensation.

Challenges of collective action in the workplace

The first issue is the question of collective action when 120 employees are injured by a common hazard. The teachers are fortunate to be represented by a union. A union can be helpful in accommodating work injuries and helping employees gather information that can prove their workers compensation case. In a case of mold exposure, it is important to gather information about mold levels so doctors have sufficient foundation to relate symptoms to mold exposure. A union is helpful in getting such information.

But public sector unions are under attack by recent and upcoming Supreme Court litigation. The National Labor Relations Act (NLRA) gives nonunion employees some right to act in a group or collective manner about the terms and conditions of their employment. But that right may have been limited by the Epic case decided by the Supreme Court at the end of the 2018 case.

Fortunately claiming workers compensation is a protected activity in most states. That means employees facing a common cause of injury would be protected from retaliation for pursuing workers compensation claims. Some states, like Nebraska, also have whistleblower statutes that would protect employees from reporting hazardous work conditions.

In cases where many people have suffered a common harm, they can file a collective or class action case. I don’t know if Connecticut allows for such claims in workers compensation. But a collective or class case in workers’ compensation could be a simpler and less epxenseive to handle workers’ compensation cases involving mass mold exposure.

Third party claims

Collective or class litigation is generally allowed in cases of mass negligence. Fault usually doesn’t matter in workers compensation, but if a third party is at fault for a work injury the employee (and in Nebraska the employer as well) can sue that third party. A third-party case usually gives an employer some right of subrogation that allows them to be repaid some of what they paid the employee in workers’ compensation benefits.

In a case of mass mold exposure employees and employers could be looking to sue a landlord or builder for negligent construction or maintenance. But if s third party didn’t cause the injury, employees are stuck with defined workers compensation benefits and employers have no hope of being repaid for workers compensation benefits they paid to employees.

The downside to s third party claim is that they usually require more expense to prove negligence. In my experience handling individual mold exposure workers compensation cases, the value of the claims usually would not justify the expense of third-party litigation. But if enough employees are joined in a case, it would make sense economically to pursue a negligence case.

Nebraska comp. court rule changes could help physician-owned hospitals

Posted on January 14, 2019 by Jon Rehm

Lincoln Surgical Hospital (above) could benefit from recent changes to NWCC rules on doctor referral

While Judges debated and rejected changes to rules about expert testimony in the Nebraska Workers’ Compensation Court, there was little discussion about a change to court rules allowing for a controversial practice among doctors.

At last month’s public meeting of the Nebraska Workers’ Compensation court, the court unanimously passed a change to NWCC Rule 50 that allowed doctors to refer to facilities where the doctors have an ownership interest.

Supporters of so-called “physician-owned” hospitals many of which are surgical hospitals, argue that that these facilities provide services at a much lower costs than hospitals. A recent article in The Wall Street Journal detailed how hospital systems can inflate the costs of medical care by limiting referrals of primary care doctors employed by them. Medical costs comprise roughly 60 percent of total workers’ compensation costs. Not surprisingly insurers like doctor-owned hospitals because of the lower costs.

But physician-owned hospitals can’t take Medicare or Medicaid due to changes brought about by the ACA. Hospitals argue that physician owned hospitals shift the cost of poorer and unhealthier patients on to them which is why the ACA disfavored physician-owned hospitals.

Essentially the change to NWCC Rule 50 was a victory for insurers and doctors over hospitals. Since the early 1980s medical expenses have taken up an increasing share of workers’ compensation expenses — now comprising 60 percent of the total expense. If the change to Rule 50 does lead to lower medical costs for the same level of service, then it should be helpful to injured workers because there will be less pressure to reduce benefit levels through legislation.

These legislatively mandated reductions in benefits usually mean worker receiving less compensation for permanent and temporary disability. Reductions in disability for compensation for injured workers has recently been cloaked in legislation adopting the American Medical Association Guide to Permanent Impairment, 6^th Edition which has been the subject of many state-level constiutional challenges from plaintiff’s lawyers.

Millennials suffer most work injuries in Nebraska

Posted on January 10, 2019 by Jon Rehm

Nearly 2/3 of reported work injuries in Nebraska are workers under 40

Workers under the age of 40 comprise 65.7 percent of reported work injuries in the state of Nebraska according to recently released statistics by the Nebraska Workers’ Compensation Court.

Put another way, Millennials are the generation that suffer the most work injuries in this state. Viewed one way, the fact that so many young people get hurt on the job belies the assumption that young people are lazy or soft. Much like the misconception that all blue collar workers are white, there is an assumption that young people don’t do blue collar work.

But viewed another way, negative stereotypes about millennials jibe with perception held by many that injured workers are just trying to get out of work or “milk the system”. In that mindset, millennial employees would be more likely to claim workers compensation because workers’ compensation claims are almost per se fraudulent.

In Nebraska and most states injured employees have some protection against discrimination if they file a workers’ compensation claim. (Although it is a close issue as to whether an injured worker is a member of a protected class or engaging in a protected activity or both) But workers under the age of 40 in Nebraska and in most other states have no protection against discrimination based on age.

The fact that stereotyping young people is legally permissible means that respectable business types have no problem with sharing humor like the “Millennial Job Interview” video that made the rounds on the internet. I doubt that any video that sterotyped a protected class like this video stereotyped millenials would have openly shared without rebuke.

I suspect allowing discrimination against young people negatively impacts terms and conditions of employment for young people. Lawmakers in Canada, where age discrimination laws generally kick in at age 18, seem to think it does. I also wonder whether negative stereotypes about millennials would lead employers to discount safety complaints from younger workers or lead them to believe that younger workers exaggerate the extent of their injuries.

Stereotypes about lazy young people aren’t new to millennials. Future generations including, Generation Z , will likely be subject to negative stereotyping. Human nature may not change, but laws controlling discrimination may force employees to change their behavior. Laws outlawing age discrimination against young people may also promote workplace safety as young people suffer the bulk of work injuries.

At least one millennial in Nebraska will have an opportunity to shape workplace law in Nebraska. Lincoln Senator Matt Hansen was elected to chair the Business and Labor Committee in the Nebraska legislature. Hansen has a good record on workers issues and I believe he will work hard to preserve and maybe even expand employee rights in Nebraska in this important position.

Nebraska Chamber of Commerce bemoans decrease in workers compensation costs

Posted on January 7, 2019 by Jon Rehm

Anti-worker changes to Nebraska workers compensation could be on the legislative agenda

True to my prediction in October, in an email the Nebraska Chamber of Commerce is bemoaning a 22 decrease in workers’ compensation costs in Nebraka over the last five years

These lamentations may turn into legislation to shift the costs of work injuries onto workers, Medicaid, Medicare. Social Security and private health insurance as the Nebraska legislature convenes this week.

I am referring to the results of the 2018 Oregon Workers’ Compensation Premium ranking which show that Nebraska and Iowa essentially changed spots from the 2016 study. According to the study, Iowa’s workers’ compensation premiums are slightly lower than Nebraska’s. Iowa enacted anti-worker changes to their workers’ compensation laws in 2017. Iowa Governor Kim Reynolds, who signed the anti-worker reforms, was criticized for accepting a plane ride to an Iowa State Cyclones bowl game from workers’ compensation claims administrator Sedgwick.

Overall, Nebraska remains a friendlier legal climate for business than Iowa, according to the pro-business Institute for Legal Reform. Nebraska ranks 7^th while Iowa ranks 13^th according to the last study.

Business interests like to gripe that workers’ compensation costs cause business to leave state’s with high costs. But the same Nebraska Chamber of Commerce griping about workers’ compensation costs in Nebraska is also complaining that there are more jobs than workers in Nebraska. Lack of jobs isn’t a problem in Nebraska like it might be in other states.

Workers’ compensation protects injured workers. In Nebraska the cost of this protection has declined for business and has not led the state to lose jobs. There are no good reasons to reduce workers’ compensation benefits in Nebraska.

A quarter-step forward but two steps back on fee scheduling air ambulance charges in workers compensation

Posted on January 3, 2019 by Jon Rehm

Congress may have implemented a partial legislative fix in response to a growing number of state and federal court decisions, the most recent out of the 4^th Circuit Court of Appeals, holding federal law regulating aviation preempts workers’ compensation fee scheduling of air ambulance bills.

The FAA Reauthorization Act authorized the Secretary of Transportation to appoint an advisory committee to suggest rules about charges for air ambulance services. But this “fix” may actually give air ambulance companies more power to avoid having their charges “fee scheduled” under state workers’ compensation laws.

The main controversy about air ambulance charges is that users, including injured workers, can be stuck with paying the difference between what insurance paid and what is billed. In workers’ compensation, when a provider accepts the “fee schedule” then an employee can not be billed further by the medical provider.

But since many courts hold that a state cannot regulation air ambulance charges, state fee schedules do not apply to air ambulances in that situation. This is because when a state law conflicts with a federal law, the federal law preempts the state law. Charges for air ambulances are often in the tens of thousands of dollars because of the cost of helicopter flight.

On a negative note for workers, the fact that the Department of Transportation is issuing rules regarding air ambulance charges could strengthen the case that the regulation of air ambulance expenses preempt state workers’ compensation fee schedules.

In another downside for workers, the air ambulance industry will get three members of the advisory board that will be helping to draft the rules, while there will be one “consumer representative” as well as two other representatives generally representing the health insurance industry. There is a chance that consumer interests could get short-shifted by the Department of Transportation.

One upside for workers is that the legislation indicates that it should breakdown air ambulances expenses between transportation and non-transportation expenses. Non-transportation expenses could be more likely to be subjected to fee schedules which would reduce the cost of air ambulance services.

Recent case law would indicate there was an emerging majority view that the fee scheduling of air ambulance charges under state workers’ compensation laws would be preempted by federal law. The 4^th Circuit Court of Appeals upheld a federal court in West Virginia that held that state regulation air ambulance charges would be preempted by federal law. The 4^th Circuit joined the 10^th Circuit, 11^th Circuit and courts in Florida, Kansas, Kentucky, North Dakota, Texas and West Virginia in holding that workers compensation fee scheduling of air ambulance services are preempted by federal law.

Three things disturbed me when I read over the recent 4^th Circuit decision and the West Virginia federal decision it upheld. The first thing that bothered me was any lack of discussion by the court about how fee schedules fit into the beneficent purpose of workers’ compensation laws. Legal analysis oftentimes requires balancing of different interests, but there was no more than cursory balancing of interests in the latest air ambulance case.

Fee schedules were generically described as a “regulation” in the most recent air ambulance case. The deregulation of air service was described by the District Court as an unvarnished good. Recent press coverage has demonstrated how business interests have worked to influence the federal judiciary. The recent air ambulance cases show a strong anti-regulatory bent and how that influence may manifest in court decisions.

Finally, the District court upheld a contracts clause challenge to state workers’ compensation fee schedules. I don’t know if the contracts clause argument would have succeeded without the pre-emption argument, but the contracts clause has historically been used to strike down workplace safety and workplace rights laws. As a plaintiff’s attorney, I don’t like seeing the contracts clause being used to weaken workers’ compensation laws. Again, this could show how business interests are influencing the federal judiciary.

But if Congress has legislated on air ambulance fees and the DOT will be regulating the area, there is some possibility that Congress or the DOT could change those rules and regulations in a way that would help workers, by say, ruling that air ambulances have to accept workers’ compensation fee schedules if one is in place. Ideally air ambulances would be excluded by Congress from the definition of common carrier as argued by proponents of the West Virginia fee schedule for air ambulances.

What’s new for 2019 in Nebraska workers compensation?

Posted on December 31, 2018 by Jon Rehm

The beginning of the year usually sees rule and benefit changes in the Nebraska Workers’ Compensation Court. 2019 will be no different. The maximum rate for disability benefits will increase to $855 to $831. Mileage reimbursement for medical visits and vocational rehabilitation will increase to $.58 per mile from $.545 per mile.

While annual increases in the maximum benefit rate are routine in Nebraska, it is not routine in all states. The annual increase in the maximum benefit rate ensures that compensation stays adequate from both a practical and constitutional perspective.

The minimum benefit remains unchanged at $49.00 per week. That amount has not changed since 1973. That low amount can particularly harm a worker who suffers a serious injury on a second job or part-time job — like a holiday job — if the work injury keeps them from doing a full-time job.

The mileage rate increase might also seem humdrum, but it is common for injured workers in Nebraska to travel relatively long distances to seek care from specialists. An increase in mileage reimbursement of $.035 per mile means another $7 for injured worker who makes a 200-mile roundtrip for medical treatment which is not uncommon in Nebraska.

The Nebraska Workers’ Compensation Court also approved various procedural changes at their meeting on December 20^th.

Rule 2 – Rule 2 regulates filing in the Nebraska Workers’ Compensation Court. Changes to the filing rules mandate the use of registration for the E-File system through Nebraska.gov. Additionally, the court will formally allow pleadings filed by 11:59:59 p.m. central time to be deemed to be filed that day rather than waiting for formal business hours to get a document file stamped. Appeals can now also be filed electronically.

Rule 47 – The change to Rule 47 provides that more detailed information about third-party cases be provided to the court in settlements that require court approval. The court doesn’t have jurisdiction to determine third-party liability but it does have some interest in repayment or subrogation interests under the theory that subrogation interests ensure that medical providers are adequately paid. Case law also provides that protection of a employer/insurers subrogation interest effectuates the beneficent purpose of the act.

Rule 50 – The court ended its prohibition of doctors referring patients to clinics where they have an ownership interest. This rule changes allows for doctors to refer to physican-owned specialty hospitals. These hospitals can perfrom procedures at a lower cost, but the ACA prohibited such facilites from taking Medicare and Medicaid.

The court also adopted a new fee schedule dictating how providers are paid for treating work injuries. You can read about here as to why that is significant here. The court also rejected a change to NWCC Rule 10 prompted by a recent Nebraska Supreme Court decision that you can read about here.

Will there be a fix for legislation like the Protz fix?

Posted on December 27, 2018 by Jon Rehm

Doing the math: How the AMA 6th costs workers with a wrist injury

In a dubious triumph for bi-partisanship, Pennsylvania reduced workers’ compensation benefits for many if not most workers with permanent injuries in 2018. 2018 was a bad year legally for workers rights and the so-called Protz fix was emblematic of the year for a few reasons.

But 2018 also showed some glimmers of hope for workers such that there may be fixes for legislation like the Protz fix.

Legislatures take, courts make and vice versa

Pennsylvania Governor Tom Wolf signed HR 1840 which legislatively overturned the Protz decision which held Pennsylvania’s language using the “most recent” edition of the AMA Guides to Permanent Impairment to determine compensation for permanent injuries was unconstitutional. Pennsylvania “fixed” the Protz decision by expressly adopting the AMA 6^th.

The AMA 6^th has been criticized, correctly in my view, because it is bases impairment on inability to do general life activities versus working activities. A recent study confirms this suspicion long held by plaintiff’s attorneys. From a practical point of view, the AMA 6^th usually leads to an injured worker receiving less compensation than they would under previous editions of AMA impairment “cookbook.”

When I started practicing in 2005 a worker who had a carpal tunnel surgery usually had a 5 percent impairment under the AMA 5^th. Now, that same injury is typically a 1 percent impairment under the AMA 6^th.

For a worker in Nebraska earning $15 per hour, the difference between the two impairments on a wrist injury amounts to $2800. After the Protz “fix” was passed, the Pennsylvania Compensation Rating Bureau filed for a 14.74 decrease in workers’ compensation insurance rates.

My big takeaway from the Protz decision and the subsequent “fix” is just how much work needs to be done politically to make sure injured workers are fairly compensated for their injuries. The Protz “fix” passed easily. Plaintiff’s lawyers resorted to constitutional challenges because many state legislatures have weakened workers’ compensation laws. Protz shows that appellate victories can be fleeting because legislatures can easily overturn those decisions.

Does the plaintiff’s bar need to worry about “constitutional challenges” of their own?

2018 also saw some disturbing court decision that could impact workers’ compensation. In SEC v. Lucia the United States Supreme Court held an investment adviser convicted of securities fraud by the Securities and Exchange Commission (SEC) was unconstitutionally convicted because the Administrative Law Judge (ALJs) who tried his case was hired in violation of the appointments clause. Iowa is one of many states workers’ compensation cases are heard by Administrative Law Judges that are hired as civil servants rather than appointed by the Executive. SEC v. Lucia could help employers/insurers to make persuasive appointments clause arguments under state constitutions that such arrangements are unconstitutional.

Protz relied on an argument about unconstitutional delegation of legislative powers which is fundamentally a conservative argument which was used to strike down New Deal legislation. Workers’ compensation reforms have also been challenged on a contracts clause basis which is another conservative argument used against pro-workers legislatsion in the past. Maybe these arguments appeal to conservative pro-business types, but they could be used against advocates for injured workers and their clients.

But there are some reasons for hope that emerged in 2018.

2018: Reasons for hope for injured workers

But 2018 did see gains for Democrats in state and federal elections. To be blunt, pro-worker is often a code for “Democrat”. While there are some exceptions, most conservatives are terrible for workers. Democrats generally oppose extreme conservatives, so they serve some purpose. But in Pennsylvania the so-called Protz fix was signed by a Democratic governor and supported by Democratic state legislators. In my experience, many Democratic elected officials aren’t going to support workers unless they get prompted, but they are usually lack the same ardor to gut workers’ rights.

More hope can be found outside the realm of electoral politics. In 2018 citizens started taking direct action. Some of the biggest gains made for workers in recent memory happened during teachers’ strikes in Arizona, Oklahoma and West Virginia this year. The chattering classes asked “Why don’t these striking teachers just vote for the right people?” Well, they tried and it didn’t work. Rank and file teachers in Arizona, Oklahoma and West Virginia found a better way to advocate for themselves.

The teachers strikes took place in the wake of the Janus decision that dealt a blow to public sector unions. Workers’ rights were also dealt a blow by the Epic decision that, among other things, allowed employers the right not to join class and collective action cases through so-called arbitration agreements. Workers for Chipotle and Uber have come up with the ingenious hack of filing in mass for individual arbitrations.

I see the challenge for 2019 for lawyers for injured workers’ is finding away for this newly emerging energy and creativity from workers in support of their own rights focused on improving workers’ compensation. I’ve written before about state senators Dan Quick of Nebraska and Lee Carter of Virginia who used their bad experiences with workers’ compensation to try to improve the workers’ compensation laws in their state.

So while lawyers for injured workers may be on the defensive in the legislative and judicial arena, we may have newfound allies that could help us reverse the steady erosions of workers’ compensation laws.

Happy Holidays!

Posted on December 24, 2018 by Rehm, Bennett & Moore, P.C., L.L.O.

Happy Holidays from the attorneys at Rehm Bennett Moore Rehm and Ockander.

This holiday season we are grateful for….

The clients who have been physically, financially and or emotionally harmed by others who trust us to represent them.

The family members of our clients who help us represent our clients.

Our staff who helps us represent our clients and put up with us on a day to day basis.

Our family members who put up with us and support us.

The doctors who treat our clients and cooperate in court proceedings along with their nurses and support staff.

Court staff, court reporters, interpreters and everyone else behind the scenes in the legal system.

Opposing counsel and their support staff for their professionalism in litigation.

Judges who provide prompt and well-reasoned decisions…even if we as attorneys don’t always agree with the decisions.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: Nebraska

Mold on the job: not just workers’ compensation

Nebraska comp. court rule changes could help physician-owned hospitals

Millennials suffer most work injuries in Nebraska

Nebraska Chamber of Commerce bemoans decrease in workers compensation costs

A quarter-step forward but two steps back on fee scheduling air ambulance charges in workers compensation

What’s new for 2019 in Nebraska workers compensation?

Will there be a fix for legislation like the Protz fix?

Happy Holidays!

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