Tag Archives: PTSD

How the federal government, the State of Nebraska and the City of Lincoln fail convenience store clerks

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A clerk at the Kwik Shop at 14th and Adams Street in Lincoln was severely beaten during a robbery last weekend when a robber reached for cash in a cash register, pushed through a barrier and jumped over the counter to beat the clerk.

News reports about that store reveal a clerk was murdered in 2016, a clerk was assaulted in 2020 and the store was robbed in 2008. The Kwik Shop at 14th and Adams is the proverbial poster child for the failure of the federal government, the State of Nebraska and the City of Lincoln to effectively protect convenience store workers.

How the federal government fails in convenience store clerks

In the wake of the July 2016 murder of a clerk at the 14th and Adams Kwik Shop, I wrote about OSHA’s failure to implement safety standards for convenience stores. The Indiana Department of Labor did a study about convenience stores and showed barriers that prevented robbers from reaching into cash registers and jumping behind counters deterred robbers.

Despite the history of violence at the store, the Kwik Shop at 14th and Adams Street still lacks those protections.

An OSHA rule would let OSHA cite convenience stores specifically for failing to protect workers from violence.

How the state of Nebraska fails convenience store clerks

The state of Nebraska has failed to implement and statutory law or regulations that protect convenience store clerks. In theory workers compensation laws regulate working conditions by making employers pay for injuries to their employees. But retail workers are not compensated for solely mental injuries (known in workers compensation lingo as “mental-mental”). So for example, if a convenience store clerk has a gun pointed in their face, but not physically assaulted, that mental trauma is not covered by workers’ compensation.

But if convenience store owners did have to pay for mental trauma injuries to their employees, they would find ways to minimize the chance of those mental trauma injuries. Measures like bulletproof glass would make it harder for robbers to jump over counters and to threaten workers with guns.

The State of Nebraska has workers compensation for solely mental injuries for first responders.  Recent legislation has expanded the number of employees who are deemed first responders and has made it easier for some first responders to prove their cases for solely mental injuries. No legislation has been introduced that would allow retail workers or convenience store clerks from receiving mental-mental benefits.

How the City of Lincoln fails convenience store clerks

Some cities have implemented safety standards for convenience store clerks. That list does not include Lincoln, Nebraska. I think public safety officials in Lincoln have also displayed a somewhat cavalier attitude about convenience store violence. After the murder of the clerk at the 14th and Adams, Kwik Shop, then Public Safety Director Tom Casady talked about how rare convenience store murders and shootings were. This despite the fact that same store was robbed in 2008. Lincoln’s then police chief, Tom Bliemeister stated that he was unsure about why Lincoln has above-average murders in 2016. Why that question may have some merit, research was clear about the risks to employees working late night retail. That store had previously been subject to a robbery. I think public safety officials in Lincoln don’t think about how public safety is often workplace safety.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Nebraska leads on first responder workers compensation benefits, but needs to do better

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The words “Nebraska” and “ahead of the curve” aren’t often used together. But when it comes to mental-mental workers compensation benefits for first responders, Nebraska has been well ahead of states like Florida, Washington and Oregon in providing those benefits.

Thomas Robinson, the author of the leading treatise on workers’ compensation, recently published an article summarizing recent state legislation expanding mental-mental benefits to first responders. Mental-mental workers’ compensation injuries are mental distress injuries not related back to a physical injury.

Nebraska first created mental-mental workers’ compensation benefits for first responders in 2010. The benefits were made permanent in 2012. In 2017 the benefits were expanded to prison guards and other state employees who work with high-risk individuals. Nebraska was well ahead of Florida, Washington, Connecticut, Oregon, New Mexico and Idaho which only recently expanded mental-mental workers’ compensation benefits to first responders.

Many first responders in Nebraska are volunteer firefighters. Those volunteers aren’t paid wages, but they are still covered by workers’ compensation in Nebraska. The coverage includes benefits for permanent and total disability.

I agree with Robinson’s arguments questioning the constitutionality of giving mental-mental workers’ compensation to first responders but not all workers. Robinson uses the example of truck drivers. I’ve written frequently about  the violence that low paid retail workers are exposed to in their work.

Workplace violence struck close to our office last week when a local man rammed his truck through the window of a Chick-Fil-A near Southpointe Mall in Lincoln. The man was armed with a stun gun and was shot by a sworn officer who reportedly driving through the drive-in. Under Nebraska law, the Chick-Fil-A employees could not make a workers’ compensation claim solely for mental distress. The officer would have a stronger argument for mental-mental workers’ compensation benefits.

I also agree with Robinson that teachers deserve mental-mental workers’ compensation benefits. The recent passage of mental-mental workers’ compensation benefits was partly motivated by a response to various high-profile school shootings. Other responses to school shootings have been less helpful. In April I wrote about work injuries sustained by teachers in Indiana during a mass shooting drill. In that injury a teacher was shot “execution style” with a paintball gun. The union representing teacher’s in Indiana drew attention to this incident in legislative testimony about school safety. That is one example of how unions help improve workplace safety.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Why are mental-mental benefits generally limited to first responders?

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Convenience store clerks are often exposed to violence. But in order for them to be compensated for work -related mental trauma, they generally need to have a physical injury.

The question of why coverage of so-called “mental-mental” injuries, or work injuries that do not involve a physical injury, is generally limited to first responders is a question that is increasingly vexing attorneys for injured workers and commentators on workers compensation — and workers.

The answer boils down to politics.

From a logical and moral point of view there is no reason why a convenience store clerk and a police officer shouldn’t be able to collect workers’ compensation for purely mental injuries from exposure to violent crime. 

Legally that moral and logical sentiment is often expressed as an argument that such distinctions violate equal protection under state and federal constitutions. Advocates for injured workers have had some success in striking down so-called workers compensation reforms on equal protection grounds.

But while equal protection arguments can be useful in restoring rights to workers compensation, they are less helpful in creating new rights such as compensation for mental injuries. When addressing whether a law is constitutional, appellate courts usually decide first on what level of scrutiny to apply. The less stringent the scrutiny, the more likely the court will find the law to be constitutional.

Health and safety laws like workers compensation are generally afforded rational basis scrutiny by appellate courts. That means courts will generally uphold the constitutionality of those laws. That deferential level of scrutiny emerged out of the New Deal era as a way to uphold the constitutionality of laws relating to social welfare. But in the modern era rational basis scrutiny is often used to argue that the protections of laws like workers compensation shouldn’t be expanded by courts in a way not intended by a legislature.

In Nebraska it was the legislature that created compensation for mental-mental injuries for first responders and expanded that protection to prison guards and Department of Health and Human Services employees in contact with high risk indviduals. So ultimately providing protection for purely mental injuries to all workers — not just first responders — will be a political issue.

 

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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9-11: 15 Years Remembered

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What have we learned, and what is the progress we have made toward helping those who help others?

As we remember and celebrate that fateful day, we should continue to celebrate and protect those who risk their lives to help others but who continue to live with the mental and emotional effects when faced with such tragic events encountered in responding to the call to serve.

In Nebraska, we have recognized that with tragic events come the effects to some who just can’t mentally and emotionally get past those events. We have garnered some protections for those first responders whose job it is to serve when emergency matters require it.

First responders have a specific definition as set forth in Nebraska Revised Statute 48-101.01, but essentially if a person serves as an officer, fireman or medical emergency personnel who is called to an emergency response situation, then that person has some workers’ compensation protections.

Personal injury now “includes mental injuries and mental illness unaccompanied by physical injury for an employee who is a first responder” if that person suffers from PTSD, depression, anxiety, mood disorder, panic attacks, reactionary diversion, neurotic disorder, etc.

One must establish “that the employee’s employment conditions causing the mental injury or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment” in which they serve.  What is usual is constantly being debated and disputed, but an event causing significant bodily injury or death is not usual in the eyes of the courts.

What is not covered or considered compensable are “mental injuries and mental illness arising out of and in the course of employment unaccompanied by physical injury … if they result from any event or series of events which are incidental to normal employer and employee relations, including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, terminations” or going through the legal process in unrelated matters.

Sometimes employers will retaliate against employees who claim work injuries. Though demotions, write-ups and post-injury terminations aren’t compensable through workers’ compensation, there could be a retaliation or disability discrimination claim. First responders who believe they might be being retaliated against should also reach out to the NAPE/AFSCME, IAFF or FOP representative immediately to help preserve their employment.

We have come a long way in the 15 years since 9-11 in providing protections and workers’ compensation coverage to first responders who make it their job to serve and protect. But what about those who were working and saw and experienced this tragedy who are not first responders? They continue to not be covered for their mental and emotional effects. On this anniversary date, as we remember those who served, we need to continue to fight for everyone who encounters tragic events in the course and scope of their employment and suffers mental illness or conditions, but do not suffer a physical injury. They need the protections workers’ compensation coverage can provide, just like first responders.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Hoping That the Revolution in Medical Care Reaches Injured Workers

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Imagine a cross between a FitBit and a TENS Unit (Transcutaneous Electrical Nerve Stimulation) that can control, on demand, issues that hurt workers face: anxiety, pain, PTSD symptoms.

That combination might not be as far-off science fiction as a person would think.

Wearable medical devices are making remarkable advances, according to respected workers’ compensation commentator Robert Wilson.

“We are only scratching the surface of what may be possible,” he predicts. “Wearable devices that can dispense medication, provide biofeedback and can both monitor and adjust a patients vitals are very real possibilities. Devices such as these will improve quality of life with real time application and treatment, and that ‘improved experience’ will help our industry drive better results at an ultimately lower cost.”

A real-life example of these advancements is an app called myBivy, which was originally developed to help veterans with PTSD sleep better by disrupting the physical “symptoms that precede night terrors.” The app is being developed by a team that “Tyler Skluzacek, a student at Macalester College” in St. Paul, Minnesota, began when he was inspired to help his father, a veteran of the Iraq War. The app is in its testing phases now and is estimated to “officially launch between March and May” of this year. Since “7-8 percent of Americans will experience PTSD at some point in their lives” and “11-20 percent of post 9-11 veterans are estimated to have PTSD,” it’s pretty obvious how the app may help those who have developed PTSD through a work-related injury sleep better. I look forward to hearing more about this particular app for sure.

This app meets Wilson’s criteria of how wearables need to evolve to be the most helpful to those who can benefit the most from them.

“To be really effective and successful, the wearable revolution needs at least one more evolution,” Wilson wrote. “An evolution that takes this medium from that of casual observer to mobile clinician; from simple data collector to partner in health. That is when we will see real benefits and results from wearable technology in all health delivery systems.”

I am hopeful that the relentless cost-containment efforts of the “Workers’ Comp Industrial Complex’ will not inhibit these creative efforts, so injured workers and their loved ones will be able to benefit from these advances very soon.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Firm takes pride in progressive worker-oriented law, Senator who fights to preserve it

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Sen. Steve Lathrop

Sen. Steve Lathrop

Sandy Hook Elementary School, Newtown, Conn., is Exhibit 1 for why all states need to compensate first responders for post-traumatic stress disorder (PTSD).

 

A few years ago, the Nebraska legislature passed legislation allowing first responders to receive workers’ compensation benefits for mental disorders arising from their work even if they received no physical injury. The bill arose out of the horrible shooting at the Westroads Shopping Mall in Omaha. Recently the insurance industry has been asking to repeal the bill and the original sponsor, Sen. Steve Lathrop of Omaha, has resisted successfully.

 

Now we learn that the first responders who worked in the horror scene at Sandy Hook Elementary School in Newtown, Conn., can’t receive workers’ compensation benefits for mental issues that might arise. http://www.newstimes.com/local/article/Officials-hope-to-change-workers-compensation-law-4180221.php I assume the Connecticut legislature will respond, protect first responders in the future and hope there is no repetition of the horrific shootings.

 

Rehm, Bennett & Moore is proud that Nebraska law protects such workers. We are proud to have state senators like Steve Lathrop. Does the insurance industry care about anything other than dollars?

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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