Tag Archives: Workers Compensation

U.S. v. Washington: A rock, paper, scissors theory of federal preemption of workers’ comp. laws?

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Summary: When it comes to the interaction of federal law and workers’ compensation, federal laws invoking national security are the rock that crushes state law scissors, but federal laws regulating the domestic economy more are more like paper which cut get by scissors.

The Supreme Court stuck to intergovernmental immunity and stuck it to ill workers at the Hanford nuclear site in eastern Washington state.

In a 9-0 decision written by now retired Justice Stephen Breyer the court held in United States v. Washington, that Washington state could not enact a presumption of compensability under their state workers’ compensation act for workers made ill at the Hanford nuclear site. The court ruled that the presumption unlawfully discriminated against the federal government.

For 30 years the Department of Defense and Department of Energy produced plutonium for nuclear weapons at the Hanford site. The state of Washington passed legislation to make it easier for workers at that site to collect workers’ compensation benefits under their state law. The federal government challenged the law. Ultimately the court relied on the landmark case of McCulloch v. Maryland to hold that Washington’s law impermissibly discriminated against the federal government.

A decision of limited impact?

Justice Breyer’s opinion included no discussion of the merits of presumptions in workers’ compensation or the substance of workers’ compensation laws at all. I was somewhat concerned about where such discussion could lead. The United States Supreme Court had addressed workplace injuries cases involving nuclear plants in the Goodyear Atomic and Silkwood cases.

In both cases the court had rejected arguments from employers that certain workers’ compensation laws and tort laws were impermissible state regulations of an industry that was the regulatory responsibility of the federal government. But there were dissents in both Silkwood and General Atomics that would imply presumptions of compensability would be impermissible burdens on the federal government Fortunately, for worker-advocates, those dissenting opinions weren’t addressed by the court – even in a dissenting opinion.

An outlier decision?

I believe United States v. Washington is an outlier when it comes to the interaction of workers’ compensation laws and federal laws. Recently, the court declined to hear a Minnesota case that would have resolved the issue of whether states can require insurers to pay for medical marijuana. Marijuana is illegal under federal law and many states believe that law preempts state’s from requiring it to be covered under workers’ compensation laws.

Last year the court also declined to resolve a conflict between states and federal circuits as to whether the federal Airline Deregulation Act (ADA) preempted state laws requiring air ambulances charges to be paid at discounted rates under state workers’ compensation laws.  The court also declined to hear challenge under the ADA from airlines against a Washington state law requiring paid leave for airline workers.

So why did the Supreme Court take up the Hanford case? I believe because of the national security implications of the case.

Federal supremacy and national security

Though Justice Breyer didn’t expressly mention national security in his opinion in United States v. Washington, the federal government clearly alluded to it in their brief.  The federal government brought up Hanford’s role in the development of the atomic bomb during World War II.

Interestingly enough, in his last reported decision as a Supreme Court justice, Breyer penned the majority opinion in Torres v. Texas Department of Public Safety. In that case, a 5-4 majority held that states did not have sovereign immunity from private suits under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

In Torres, Breyer wrote that the authority of Congress to build and maintain the armed forces under Article I, Sec. 10 of the Constitution overrode state sovereign immunity when it comes to suits against states under USERRA.

Though Torres and United States v. Washington lead to opposite outcomes for the employees involved in the case, they both demonstrated how the “rock” of national security beats the “scissors” of state sovereignty when it comes to the Supremacy Clause. Recent Supreme Court decisions relating to the interaction between workers’ compensation law and federal law regulating the domestic economy, show that those federal interests are more like “paper” which gets cut by scissors.

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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Increase in mileage payments necessary for injured workers in Nebraska, but inflation erodes the value of workers’ compensation benefits

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In Nebraska workers’ compensation benefits are not indexed for inflation. Further inflation can work to decrease the amount of benefits paid in addition to the value of those benefits.

The Nebraska Workers’ Compensation Court announced earlier this month that mileage reimbursement for medical and vocational travel will increase from $.585 per mile to $.625 a mile effective July 1, 2022.

The rule change should benefit injured workers – particularly those who live in rural parts of Nebraska who are often required to travel long distances to larger cities for specialized medical care. But increased travel costs are part of a broader trend of rising inflation. That trend will impact injured workers in less helpful ways. 

Workers’ compensation benefits are set by an employee’s wages at or near the time of injury. Inflation is rising at a rate higher that wages. So workers are starting their claims with reduced real wages.

Inflation is bad for injured workers in Nebraska (and most places) for other reasons. In Nebraska, weekly workers compensation benefits are fixed at earnings near the time of injury. Nebraska doesn’t adjust those benefits for inflation. Even when inflation was more moderate injured workers got a raw deal because the value of their benefits declined relative to inflation. Higher inflation just further erodes the grand bargain of workers’ compensations.

But inflation doesn’t just decrease the purchasing power of workers’ compensation benefits, it can reduce the nominal or gross amount of benefits awarded.

An award of permanent disability benefits is based on how the injury effects a person’s ability to earn a living. Further, injured workers who have long lasting injuries often have their disability determined by wages at the time they healed from their injury. So even if an employee can’t increase their benefits for inflation, their earning power is based wages that have inflated while they have been healing from their injury.

Again, even during times of modest inflation workers could get nickeled and dimed a 2.5-5 percent of loss of earning power based on inflation. Higher inflation will probably mean that loss of earning power benefits will be further discounted. I’ve written about how to argue against using inflation in lost of earning power analysis. I think those kinds of arguments will be more urgent with higher inflation, but I don’t know how appellate courts will come down on the issue.

While higher inflation is an overall negative for most injured employees, there could be some positive effects of higher inflation.

One bit of good news is that higher transportation costs could increase awards of permanent disability

An award of permanent disability benefits is based on how the injury effects a person’s ability to earn a living. That hinges in part on where you live. Commute costs factor into the amount of available jobs and will be considered by Judges in how disabled an individual is for the purposes of workers’ compensation. Higher commuting costs tend to lead to higher disability awards.

Commute costs can also be a decisive factor in deciding whether an employee is permanently partially or permanently totally disabled. Permanent partial disability benefits are limited to 300 weeks while permanent total disability benefits are paid out over a lifetime. The difference can amount to hundreds of thousands of 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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Counter-point: It’s about time unions had a “moment”

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A good union can shut down a lot of standard tricks from insurers/claims administrators/self-insureds in workers’ compensation claims

My fellow workplace law blogger, Cleveland-based management-side attorney-blogger Jon Hyman, has been raising the alarm about resurgent unionization drives in the wake of union victories at Amazon and Starbucks. His message to employers is that unions, long thought dead, are making a comeback.

One Jon’s fear and nightmare is another Jon’s hope and dream. In my 17 years of experience of representing employees in workers’ compensation and employment law cases, I can say it’s about time unions had a moment.

This is particularly true if an employee gets hurt on the job. Here are the major advantages of working union versus working non-union when you get hurt at work.

Job Security

Most union contracts require that an employer proves just or good cause to fire an employee. In practice this means proving some willful misconduct weighed against an employee’s work history and other mitigating factors. If and when push comes to shove, an employee has a good chance of overturning a termination in an arbitration proceeding.

In contrast,  a non-union or at-will employee can be fired at any time. Sure most states, including Nebraska, have laws against workers’ compensation retaliation. But are those laws effective? A study by the Texas Department of Insurance questions the effectiveness of those laws. They reported 52 percent of injured workers were fired more than six months after being hurt on the job.

I’m not surprised as there are all sorts of pro-management tricks and traps in retaliation cases. For example, courts are reluctant to find protected activity, but even if they do they are raising the burden of proof for causation. There are also judge-made rules like the managers rule that disqualify certain employees from claiming retaliation and the good old-fashioned “honest belief” rule that often leads courts to discount false reasons for employment decisions.

Of course an employee also has the burden of proof in a civil case against their employer, so employees are a playing field tilted toward the employer. A lot of judicial precedent just pours grease on that uphill climb.

Job Security, Part 2: Extended leave and employee-friendly return to work programs.

Union contracts typically give employees protections above and beyond what is afforded to at-will or non-union employees.

One reason many injured workers lose their jobs is that their recovery takes longer than the mandated 12 weeks of protected leave under the Family Medical Leave Act. (This is particularly true if employers/insurers drag their feet on approving medical care) Further, even if an employer and employee go through a good faith interactive process to accommodate a medical condition as required by the Americans with Disabilities Act (and that’s a big if) the employee isn’t guaranteed a job.

Union contracts often address these concerns through extended leave provisions, negotiating return to work and light duty issues and giving employees seniority rights that allow them to bid into easier jobs. Unions can also build solidarity among co-workers which makes it easier for workers to informally accommodate disabilities among themselves rather than engaging in paper-heavy and adversarial process with human resources and/or occupational health.

Good union v. meh union when it comes to workers comp.

I just read over a union contract on workers’ compensation and return to work for a client. Like 1980s NBA action, it is fantastic. Not only do they negotiate return to work and light duty, they bargain for the employer to cooperate in the claim and to not interfere or retaliate for members who get hurt on the job. Further they place some limits on the company contacting their members. In other words, if a company engages in a lot of standard insurance company/claims administrator/self-insured shenanigans, the company could be looking at arbitration.

Some unions punt on workers’ compensation under the theory that since they don’t negotiate for workers’ compensation, they will leave it to the company. I don’t like that philosophy. But even in a union where the union takes a hands-off position towards workers’ compensation, the employee still has more job security and better benefits.

Good insurance benefits for denied workers’ compensation cases

Insurers and claims administrators like denying workers’ compensations cases on questionable circumstances. This is particularly true in states like Nebraska where employees can’t sue their workers’ compensation insurer for bad faith. If an employee doesn’t have health insurance, then they will often have a hard time getting the medical evidence they need to prove up their workers’ compensation case by going to the doctor.

But union employers tend to have good health insurance that allows employees to get the medical treatment they need for their health and for their disputed workers’ compensation cases.  Sometimes employees can also collect private disability. Sure health insurance and disability liens can create hassles in resolving a workers’ compensation case, but getting health care and income far outweighs any inconvenience caused by dealing with potential liens at the end of a case.

Do non-union employers have similar benefits. Sometimes yes, but why do they have these types of benefits? Often times its to offer benefits similar to unionized plants. I see this frequently in meat packing in Nebraska. I litigate frequently against beef processing plants owned by Tyson in Lexington, Nebraska, Cargill in Schuyler and JBS in Grand Island. JBS and Cargill are union, Tyson isn’t. But Tyson’s benefits and even some of their leave policies are similar to the unionized plants. Tyson has to keep up with JBS and Cargill.

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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Will fading federal privacy rights limit ability of injured workers to protect privacy?

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But if states enshrine privacy rights in their state constitutions in reaction to probable Roe reversal will it limit the influence of insurance case managers in workers’ compensation claims?

If the United States Supreme Court does in fact overturn Roe v. Wade, as it seems they will based on a draft opinion leaked last week, it would be the most important Supreme Court decision in decades. But does the decision have any impact on the state-based, statutory and administrative world of workers’ compensation?

I think it could when it comes to the use of nurse-case managers and the right to privacy. Case managers will often attend medical appointments with injured workers. Experienced case managers are able to direct medical care in a way advantageous to employers in workers’ compensation cases.  States that have rights to privacy in their state constitutions such as Illinois and Montana, are able to reign in insurance case managers from interfering with the medical care of injured workers in workers’ compensation cases.

But, Justice Alito’s draft opinion in the Dobbs case calls into question the right to privacy under the United States Constitution. In theory, even if a state constitution didn’t expressly contain a guarantee of privacy, an employee could at least at least use a  federal right to privacy to limit the access of a case manager to medical information. But if Roe v. Wade is gone or dead letter law, that option is gone for injured workers.

Red states v. Blue states and the right to privacy

In 2020, I wrote that anti-abortion organizations and elected officials would likely try to block any efforts to impose a state right to privacy in the Nebraska state constitution. I could see that happening in other Republican-dominated red states. But will other “blue” or Democratic-governed states follow Democratic-governed Illinois in guaranteeing a right to privacy in their state constitutions to protect reproductive health and abortion rights? We will see. But if those states did enact right to privacy amendments, they could impact the day-to-day business of workers’ compensation claims in a way that could benefit workers.

Waiving privacy in an injury case?

But even if employees can keep hostile third-parties out of medical appointments in workers’ compensation cases, normally private medical information is usually fair to ask about and disclose in a workers’ compensation case. Nebraska follows the civil discovery rules in workers’ compensation cases which gives employers a lot of leeway to look into medical history and subject injury claimants to medical examinations. Sometimes these inquiries can be demeaning. Employees do have some tools to stop excessive and unreasonable requests for medical information, but if the right to privacy is weakened they have one less tool to protect their dignity in a workers’ compensation claim.

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 Ketanji Brown Jackson could hear a workers’ compensation case at the beginning of her Supreme Court career

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TLDR: In short, I think the issue of whether requiring insurers/employers to reimburse employees for medical marijuana under state workers compensation laws is pre-empted by federal criminal law is one the Supreme Court will take up. Federal criminal law is a strong federal basis to review a preemption question. I also believe medical marijuana in workers compensation addresses federal criminal law issues in addition to separation of powers issues.  All of these factors distinguish medical marijuana from the issue of air ambulances charges in workers compensation that also involves preemption, but the Supreme Court declined to address in 2021.

District Columbia Circuit Court of Appeals Judge and Supreme Court nominee Ketanji Brown Jackson is going through Senate confirmation hearings this week. But if she is confirmed, could one of her first cases involve an issue about workers’ compensation?

I think so.

Last month, the Supreme Court asked the Solicitor General to submit a brief to help them decide to whether to hear an appeal from two Minnesota cases where that state’s high court decided that federal drug laws preempted Minnesota insurers/employers from needing to reimburse injured workers for medical marijuana under their state’s workers’ compensation laws.

Minnesota joined a growing number of states that have split over whether federal drug laws preempt their state workers compensation laws when it comes to medical marijuana. Last spring the United States Supreme Court declined to hear another conflict between state and federal law over air ambulances that split many state and federal jurisdictions.

But after reading the Minnesota decisions, I think it is more likely the Supreme Court will weigh-in over medical marijuana and workers’ compensation. Not only does medical marijuana involve a conflict between state and federal law, it is also implicates criminal law and separation of powers between the executive branch and the executive branch of the federal government.

Criminal law and medical marijuana in workers’ compensation

The split over medical marijuana in workers’ compensation turns on two questions 1) are insurers/employers aiding and abetting illegal activity under federal law by re-imbursing injured workers for medical marijuana through workers compensation and 2) are employers/insurers at risk of breaking the law by re-imbursing workers for medical marijuana.

The first question turns on how to interpret “aiding and abetting” and intent under criminal law. The second question goes to separation of powers issues. While marijuana is illegal under federal law, Congress has passed legislation through spending bills that prohibits the Department of Justice from prosecuting users and distributors of medical marijuana.

Further complicating the analysis is that fact the Department of Justice has shifted its policies about whether they will prosecute medical marijuana users and distributors depending on which party controls the White House.

As stated above, the medical marijuana cases also involve a question between whether federal powers to regulate interstate commerce conflict with state’s 10th Amendment police powers that are the constitutional basis for workers’ compensation. The court declined to ponder that conflict in the Texas air ambulance appeal last year. My hunch is that the Supreme Court believes federal criminal law provides a stronger basis to preempt state workers’ compensation laws than laws regulating air travel

For example, federal courts are moving away from giving deference to how federal agencies that regulate the domestic economy interpret the laws they enforce. But courts are still deferential to the executive branch when it comes to matters of national security.  My feeling is that conservative-leaning Supreme Court is going to view federal criminal law as closer to a matter of national security than economic regulation.

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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Home is where the chart is when it comes to doctor choice in Nebraska workers’ compensation

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Nebraska workers’ compensation law allows injured workers to pick their own doctor to treat their work injury. But what if an injured worker picks their doctor to treat their work injury, but gets treated by another doctor at their doctor’s clinic?

I believe Nebraska law would let an injured worker see another provider who practices with an injured worker’s doctor. But, not surprisingly, some nitpicking types on the employer/insurance side of workers compensation don’t think an injured worker should be able to treat with the partner of an injured worker’s family doctor.

Why you should be able to treat for a work injury with another doctor at the clinic where your doctor practices

Under Nebraska Workers Compensation Court Rule 50(A)(2) an injured worker can chose a family physician to treat for a work injury. Per Nebraska Workers Compensation Court Rule 49(E) a family physician is one who maintains records and has a documented history of treating the injured workers or a family member.

So when it comes to workers’ compensation doctor choice in Nebraska, home is where your medical chart is found. For example, if your provider is Dr. Smith at the Main Street Clinic, Dr. Smith’s partner, Dr. Jones, should be able to treat you for a work injury if Dr. Smith is unavailable. The key fact is that your medical records are that clinic, which would aid any provider in treating you for a work injury.

The importance of doctor choice in workers’ compensation

Most people would probably say its common sense that you should be able to treat with a doctor at the same clinic as your regular doctor if your regular doctor isn’t available. But there is a whole cottage industry of management-friendly medical providers that seek to talk workers out of exercising their rights to pick their own doctor to treat a work injury in Nebraska. I wrote a post a few years back, picking apart some talking points to that effect sent out by an occupational medicine clinic in Omaha.

But management-side talking points about why injured workers shouldn’t pick their own doctors to treat work injuries aren’t solely based on faulty logic and assumptions. Intimidation substitutes for persuasion when it comes to employers and insurers pushing injured employees to employee-friendly doctors and medical providers.

What if your doctor is really a P.A. or nurse practitioner?

Lots of people get their primary medical care from physician assistants or nurse practitioners. If those providers practice under the supervision of a medical doctor, then I think an injured worker should be able to pick those providers. After all, the employee’s medical records are at the office of that provider.

But a P.A. or Nurse practitioner might not be able to testify by report in a Nebraska workers’ compensation case without a supervising doctor signing off on the report. But in serious injuries, primary care providers refer out to specialists who are almost always able to testify by report. And secondly, there is a distinction between who can testify by a report a workers’ compensation case and who can treat a workers’ compensation claimant in Nebraska.

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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Workers suffer when HR passes FMLA leave decision buck to disability insurers

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“So what exactly would you say you do here?”

Anyone who has seen Office Space is probably familiar with this quote. I think the quote applies to big corporate Human Resources (HR) departments that outsource Family Medical Leave Act (FMLA) eligibility determinations to private disability insurers.

One purpose Congress had in passing the Family Medical Leave Act in 1993 was that there was “inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.”

The way some big employers determine FMLA eligibility flies in the face of this purpose. If you wanted to design a system to fire workers with health conditions, I’m not sure the craftiest HR and legal minds representing management could come up with a better way to do so than outsourced leave administration.

Why outsourcing leave decisions to private disability insurers is a bad idea

FMLA is unpaid leave. Many employers use short-term disability as paid leave. But if you need to be off-work to get short-term disability then the decision about eligibility for FMLA and disability are one in the same. But if a short-term disability insurer is the decision maker, they have a reason to deny claims because paying claims costs money. So in essence, an employees right to unpaid leave is premised on an insurance companies decision about paying disability benefits.

That this is a terrible idea should be apparent to everyone to knows how insurance companies work.

And seeing exactly how this process harms workers is infuriating.

FMLA leave determinations should be simple

If you work at a big employer, you’ve been there for a year or more and have worked more than 1250 hours in that year and you can’t work because of a health condition or the health condition of a loved one, you’re eligible for Family Medical Leave Act. It’s basically that simple.

FMLA issues often arise when a worker gets hurt on the job. So if a worker brings in a doctors note with work restrictions that an employer can’t accommodate, you would think it would be as simple as HR looking at payroll records to see if an employee is eligible for FMLA.

Plaintiff’s lawyers like me make these determinations all the time in a few minutes when prospective clients call in about claims. I fail to understand how HR managers at large worksites for major companies can’t make the same decisions with the resources they have available.

But that’s not how things work with many major employers.

How outsourced leave works

So instead of the process I described in two paragraphs above. Outsourced leave decisions require the employer and an outside entity to communicate about an employee’s leave eligibility. It also requires an employee, who typically doesn’t have a lot of experience with paperwork, to send documents to their employer and to the leave administrator. Often times these documents are sent by medical offices. Sounds complicated, lots of room for error. Employers have lots of reasons to claim they didn’t get documents or blame employees for not properly communicating.

But it can get even more complicated when some company nurse is hassling an employee or their doctors about a return to work before they are ready.

It gets even more complicated when someone in HR or a company nurse engages in Dwight Schrute/Toby Flinderson-style amateur sleuthing to uncover alleged employee fraud or abuse of FMLA.

Ongoing complications due to remote work by insurers during the pandemic don’t help out either.

All of these complications need to viewed in the context of the disability insurer/leave decider being fundamentally adverse to the workers asking for disability insurance and leave.

Sure, an experienced lawyer would know how to navigate this web. But when it comes to leave applications, blue collar workers are often thrown into this hostile maze without assistance or even knowing where to turn for help.

Why outsourced leave?

Outsourced leave is usually administered in conjunction with short and long-term disability insurance. Employers like these policies, in part, because they are good ways to shift the cost of work injuries away from workers compensation. I think this particularly true for injured workers who may have aggravated an old injury, had an overuse injury or didn’t report injuries immediately. These workers are often mislead by HR and employee health types that workers compensation coverage isn’t available in those situations.

Of course, pushing employees who are hurt on the job to apply for short or long-term disability is just pouring glue on the already sticky situation described above. An application for short-term disability can muddy a claim for workers compensation and vice-versa. A private disability carrier may claim a right to repayment for workers compensation benefits. A private disability company may also have policies that in effect require their beneficiaries to apply for Social Security Disability Insurance. This can complicate a workers compensation claim as well.

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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Human capital disclosure rule effects being felt in Nebraska workers’ compensation

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Most observers expect newly-confirmed Labor Secretary Marty Walsh, a former leader in the Laborers’ International Union, to focus on workplace safety. But one of the most immediate impacts of a federal executive branch on workplace safety is coming from an unexpected source – the Trump administration Securities and Exchange Commission (or SEC)

This potential boon to workplace safety is known as the Human Capital Disclosure Rule which as enacted in November 2020. A  recent call from a client tells me it could already be having an impact.

The human capital disclosure rule

I got a call from a client who works at Tyson. Tyson stock is publicly traded. The client informed me the plant was offering to pay the unpaid medical bills of their employees who were hurt at work.

My first reaction was along the lines of “isn’t that what workers comp. is for, what are they trying to pull?” (I took out the profanity) But then I remembered this human capital disclosure rule.

The human capital disclosure rule was implemented because 85 percent of corporate costs are “human capital” and if investors want to be able to value companies they need to do know the cost of “human capital.”

If you run a meatpacking company, one major component of human capital costs is the price of work injuries. In theory, you should be able to measure those costs through workers compensation. But things are different in practice.

Cost-shifting

In practice those costs of work injuries get shifted on to health insurance, Medicare, Medicaid, Social Security and private disability. This is largely a function of aggressive claims handling practices that make it difficult for injured workers to get workers compensation benefits.

But if investors want to know the costs of work injuries, even a major food processor wouldn’t be able to measure the cost of work injuries. So, companies are improvising with programs like the one described by my client. These special programs could give employers and investors a better idea about the true cost of medical care from work injuries.

Impact of voluntary payments on workers compensation in Nebraska

Payments for work injuries made to comply with the human capital disclosure rule could impact eligibility for benefits under the Nebraska workers’ compensation act. I would argue that such payments would extend the statute of limitations on a claim if they were paid within two years of the last payment of benefits. A voluntary payment of benefits once the statute of limitations two year statute of limitations had run would not extend a claim.

A different take on the human capital disclosure rule in the Biden administration?

The commentary on the human capital disclosure rule states that employers have a lot of discretion about how to implement the rule. Maybe, the more worker-friendly Biden administration may implement tougher standards to force some employers to more accurately measure the cost of work injuries.

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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