Tag Archives: Workers Compensation

How to get paid regular wages for missing work due to a medical visit in a workers’ compensation case

Posted on February 24, 2020 by Jon Rehm

Can an injured worker claim their regular pay if they go to a medical appointment as part of their workers compensation claim? The answer is yes. But like most legal questions there are always qualifications.

Why you can get paid wages for workers’ compensation medical visits
First, per the Fair Labor Standards Act (FLSA) and federal regulation 29 CFR 785.43, getting paid for time spent going to a doctor applies when the employee seeks treatment on site or during regular work hours. An employee might have a harder time claiming pay if they are forced to seek medical treatment during non-work hours. But I believe it would be a close and interesting legal issue if time spent going to employer-compelled medical treatment during non-work hours would be covered under the FLSA.

Secondly, per case law, it seems like that medical treatment would need to be expressly authorized and set up by the employer. It might be more difficult for an employee to get paid their wages while taking time off of work for medical treatment in a disputed workers’ compensation case.

Another complication may be if an employee takes paid leave to attend an employer-ordered medical appointment. Arguably since paid leave or paid time off isn’t mandated by law it might be difficult to bring a claim under the FLSA for the forced taking of paid leave. State wage and hour laws like the Nebraska Wage Payment and Collection Act may provide a remedy.

Why wage and hour law can be better than workers’ compensation claims when it comes to wage payment issues

So why would an injured worker want to claim unpaid wages instead of temporary disability? Several reasons, in Nebraska temporary total disability pays two-thirds of your pay and temporary partial disability pays two-thirds the difference between reduced hours and your average weekly wage. But under wage and hour law, a workers can claim their full wages for time spent going to certain medical visits as part of their workers’ compensation claim.

In Nebraska, overtime pay is not taken into account in determining workers compensation benefits. But under the Fair Labor Standards Act an employee can claim overtime pay. The Nebraska Workers compensation act also caps benefit rates at $882 per week. There is no cap to hourly pay under the FLSA.

Nebraska also has a one week waiting period for benefits. In injuries where disability lasts less than six weeks, that first week of disability isn’t paid. There is no waiting period for unpaid wages under the FLSA.

I’ve written about how the Nebraska workers’ compensation act has weak attorney fee and penalty provisions that make it easy for employers to shortchange employees when it comes to workers compensation disability benefit payments. In contrast the FLSA has strong attorney fee and penalty provisions that make it more attractive to bring claims for smaller amounts. Smaller FLSA claims can also be combined into collective action claims. The Nebraska Workers’ Compensation Act, like most of other workers’ compensation laws, does not allow for collective or class action cases.

The only disadvantage of getting wages over workers’ compensation benefits is wages are taxable while workers compensation benefits are not taxable.

How an employee can bring a wage claim for time spent going to the doctor for workers’ compensation case.

The most important part of a wage and hour case for a worker is being able to precisely prove lost time. This should be simple for injured workers as medical visits usually only take place a few times a week at the most. Many injured workers keep track of mileage already as mileage benefits are part of medical benefits under workers’ compensation in Nebraska. If you can keep track of mileage, you can also keep track of time spent going to medical appointments. If an injured worker turns in mileage to their attorney or workers compensation claims department, there is no reason they can’t turn over claims for unpaid wages to Human Resources directly or through their attorneys.

Anti-retaliation provisions

Retaliation is always a concern of workers who exercise their rights at work. Fortunately, the FLSA makes it unlawful for an employer to retaliate against an employee for exercising their rights under the law. Nebraska and most other states prohibit employers from retaliating against workers who file workers compensation as well.

Who do rules about texting and driving really protect?

Posted on February 17, 2020 by Jon Rehm

OSHA came out with guidelines about mobile device use while driving by employees. So why do I have mixed feelings something that most people would think is a good idea?

I believe texting and emailing while driving is a terrible idea and a clear safety hazard. But, management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims.

Management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims. They can argue either that mobile device use by an employee by driving is a deviation from employment duties. That may be difficult to argue if a travelling employee was using a mobile device while driving for work purposes.

In the alternative the employer may affirmatively allege that mobile device used was a safety violation that would disqualify them from receiving workers’ compensation. This is a difficult burden for an employer to meet. OSHA suggests that employers set up a “disciplinary action system” for workers who violated driving safety rules. Having written rules against a practice can make it easier for an employer to defeat a workers’ compensation claim by arguing an employee was willfully negligent.

Generally, workers compensation laws are favorable to workers who are injured while travelling, this known as the travelling employee doctrine or presumption. But in fairness to the insurance industry, this legal doctrine developed before the use of mobile phones.

In fairness to OSHA, their guidance on mobile phone usage was also meant to protect workers from being forced to use mobile devices while driving. Those who work and live in relatively remote areas know the term “windshield time” to describe long car trips. There is intense pressure to use that time productively. There is a strong temptation to text or email while driving even though you know the hazards.

The guidelines may give employees some protections against retaliation if the refuse to text or email while driving. But anti-retaliation laws are only as good as the court cases that interpret them and some courts have recently began to curtail protections afforded by those laws.

I speak from first-hand experience. I do a lot of long-distance driving for work. If areas like rural Nebraska were better served by air, rail and bus service, I wouldn’t need to drive so much. The same goes for many workers in states like Nebraska. But thanks to transportation deregulation those of us who travel to and within rural areas are stuck in our cars during business hours.

Texting and driving creates risks for other motorists in addition to the drivers who text and drive. But the law already punishes drivers who cause accidents through use of their mobile devices. Drivers who text and drive can be punished criminally and be held accountable in civil cases. Accountability for employers who create dangerous working conditions is mostly limited to state workers’ compensation laws.

I believe the risk of distracted driving is apparent to any adult. Why does OSHA need to issue guidance? I suspect it has something to do with my point about employers using rules against cellphone usage while driving to deny workers’ compensation claims.

But while OSHA is issuing guidelines about the obvious risk of texting and driving, the United States Department of Agriculture is overlooking the obvious risk of overuse injuries to packinghouse workers. The USDA in the Trump and Obama administrations have allowed meat processors to speed up lines to the detriment of workers. I hope if there is a new presidential administration next year, that administration will use its rule-making power to make workplaces safer and not give employers ways to dodge their responsibilities under state workers’ compensation laws.

The hidden legal hazards of icy side streets

Posted on January 27, 2020 by Jon Rehm

Icy residential streets in Lincoln caused problems last week for commuters and workers alike. (Photo via Google Images and 1011now.com)

I usually flip through the FM dial on my drive into work in the morning. Last Tuesday, I flipped to Lincoln Top 40 mainstay, KFRX, and heard a delivery driver talk about the hazards he encountered on Lincoln’s icy side streets.

Icy side streets, plagued Lincoln from Air Park to Vintage Heights until last Wednesday. But this hazard can create other kinds of hazards for workers who are forced to navigate slick side streets.

While icy residential streets may seem like a preventable hazard, the law gives cities like Lincoln little incentive to clear side streets.

Hidden hazards of slick streets for delivery drivers

When the roads are bad and weather conditions are cold, most people don’t like leaving the house. With the advent of online shopping and food delivery apps, consumers can order food, shop online, and stay inside.

But someone needs to deliver what is ordered online. Those delivery drivers who bring those goods are at an increased risk of injury and property damage due to icy side streets.

Assuming a delivery driver is an employee, injuries from icy roads incurred in the course and scope of employment should be covered by workers’ compensation.

But many delivery drivers are classified as independent contractors. Most if not all, delivery people, should be employees for the sake of workers’ compensation. But workers don’t always know their rights and often intimidated by employers. As a result, misclassified delivery drivers may end being stuck with the costs of their own work injury.

Third party claims for icy driveways and sidewalks, but not icy streets

If the injury is the fault of someone else, an independent contractor can bring a negligence claim. Even a worker covered by workers’ compensation claim can bring a so-called third-party claim if another party besides them or their employer is at fault for their injury.

But not all negligence related to icy conditions is legally actionable. Yes, a delivery driver can sue a homeowner who doesn’t remove snow for negligence. But thanks to sovereign immunity, it’s difficult if not almost impossible to sue a city for not clearing icy side streets.

Kings don’t need to plow their subjects side streets

Sovereign immunity is a legal fiction borrowed from English law that you can’t sue the king for his wrongs. The Declaration of Independence, George Washington, the Battle of Yorktown and all that other good stuff aside, American governments decided to adopt this British doctrine. (After all, it’s good to be king)

In Nebraska, the Political Subdivisions Tort Claims Act (PSTCA) dictates how and for what conduct political subdivisions can be sued. Political subdivisions, like cities, can’t be sued for decisions made by policy makers. These functions are called discretionary functions. Lincoln Transportation and Utilities Director Tom Casady, a former Lincoln police chief and longtime city hall fixture, used exactly that language in explaining (or excusing) why the City of Lincoln waited until Wednesday to plow side streets.

In addition, just for belt and suspenders to use a legal term, political subdivisions can’t be sued about snow and ice removals on public roads.

Strong-mayor systems and sovereign immunity

Lincoln (and Omaha) are governed under so-called strong mayor systems which means appointed officials within the executive branch are given broad leeway to make policy decisions. This probably gives Lincoln officials another layer of legal protection against litigation over poor street conditions.

Solutions for slick side streets?

A combination of warmer weather, more snow and probably some public outcry lead Lincoln to plow side streets. A more long-term solution for slick side streets in Lincoln could lie with the City Council voting more money for snow and ice removal. The Legislature could also modify the PSTCA to allow cities to be sued over snow removal. Either scenario seems unlikely at present.

Ultimately residents could band together to clear side streets on their own through homeowners and neighborhood associations. I don’t like that option in the long run or big picture because it would tend to favor wealthier neighborhoods and would undermine confidence in government in general and city government in particular.

Neb. Ct of Appeals tightens notice requirements in workers’ compensation cases

Posted on January 13, 2020 by Jon Rehm

The Nebraska Court of Appeals held that waiting 38 days to report a work injury was enough delay in reporting to dismiss a workers’ compensation claim. Though what constitutes timely notice is a case by case determination, the Bauer v. Genesis Health Care case is troubling for workers for many reasons.

Fear of retaliation not an excuse for not reporting injury – In the Bauer case the employee was worried about his job security and testified this one reason he delayed reporting his work injury. The suspicions about termination weren’t unfounded as the employee as put on leave 10 days after his injury. The Nebraska Court of Appeals disregarded this argument and found the plaintiff would have still been able to report his injury.
Change in personal plans can trigger duty to report work injury – The law requires that an employee report an injury as soon as practicable. “As soon as practicable” can vary by the circumstances. The key fact is that the employee knows something could be wrong because of a work injury. In this case the fact the employee cancelled a personal trip a week after the work injury was one fact that persuaded the court the that plaintiff did not report his injury as soon as practicable.
Stricter reporting standards for medical personnel – The court thought it was relevant that the injured worker was a physical therapy assistant was relevant to their conclusion that the employee did not report their injury as soon as practicable. Their theory was that professional knowledge should have lead him to conclude he needed treatment and that the injury should be reported. I wouldn’t be surprised to see insurers and their attorneys try to broaden this argument to all types of medical personnel.
Change in work duties can trigger duty to report – The Bauer case was unusual in that since he was a manager he could place himself on light duty without asking permission. Usually asking for light duty would be enough notice for an employee to meet the notice requirement. But since Bauer didn’t ask, he didn’t put his employer on notice about his injury. Employees who work with co-workers to change job duties to accommodate a work injury may be vulnerable to having their workers’ compensation cases dismissed for lack of notice, if they don’t report a work injury to a supervisor soon after their duties change.

Other takeaways from Bauer

Referral to specialist probably triggers a duty to report — Bauer cited to Williamson v. Werner, where the court held that an employee should have reported their injury to their employer after they reported it to their doctor. That didn’t happen in Bauer as the employee denied he was hurt at work at his first two medical visits. The court thought it was relevant that at the first visit after the work injury that he was referred for an MRI and to a specialist, yet did not report his injury to his employer.
Appearances matter – Bauer had some other bad facts working against him: 1) He didn’t report his work injury until after he had been placed on leave and 2) He twice denied that he was hurt at work to providers. The court stated an employee who provides proper notice of an injury is one that is acting in good faith or honestly. Changes in stories about how an accident happened or irregularities in reporting don’t create an impression of good faith even if they can be explained. But if fear of termination is the explanation of why an employee doesn’t report a work injury, the Bauer decision indicates Nebraska courts won’t consider that factor.
How the fear of retaliation harms workers’ compensation and retaliation claims – The Bauer case represents a common situation where an employee doesn’t turn in a work injury over fear of retaliation. Workers’ compensation retaliation is unlawful, but it is difficult for an injured worker to claim retaliation if they don’t report their work injury. So fear of retaliation can undermine both a workers’ compensation claim and a retaliation claim.

Retail jobs surpass manufacturing jobs in injury rate

Posted on December 30, 2019 by Jon Rehm

What’s a more dangerous job, working in retail or working in a factory?

Most would say manufacturing, but according to the Bureau of Labor Statistics, retail jobs had a higher incidence of lost time work injuries than manufacturing in 2018.

If you read this blog on a regular basis, you know about the danger of retailing jobs. The workers’ compensation blogosphere runs “the dangers of holiday jobs” posts over the holiday season on a yearly basis to talk about risks of holiday employment in retail.

While automation, think self-checkouts, has eliminated some retail jobs, the remaining retail jobs usually require at least a 50-pound lifting restriction. Online shopping and competition from Amazon, means that more retail employees perform heavier and more dangerous warehousing and delivery tasks. The increased injury rate in retail work also means that more injured employees may be placed in light or alternate duty attendant jobs like the famous Walmart greeter job.

Workers’ compensation lawyer bloggers tend to write about jobs with high injury rates. But the story of retail employment isn’t just a question of retail work becoming more dangerous, it could also be caused by manufacturing jobs becoming less dangerous.

A recent article in the Wall Street Journal predicted that within a few years, the majority of manufacturing employees will have a college degree. The changing demographic of manufacturing employees is explained by increasing investment in manufacturing technology that will turn many manufacturing workers into machine operators who require specialized skills.

In theory — and practice – this investment in technology should make manufacturing jobs safer. But manufacturing jobs will still be more hazardous for the foreseeable future. Some investment in manufacturing technology involves cobbling together 2010s (and soon 2020s) software on top of machines built and designed in the 1960s. The dangers of this approach were exposed by two crashes involving the Boeing 737 Max. The 737 Max is an example of the hazards that workers’ can be faced with when companies mix 20^th and 21^st century technology.

New manufacturing technology may also fail to take human factors into a consideration. An expensive new piece of machinery may increase productivity, but it may still require heavy lifting from a worker to process inputs. The new manufacturing economy probably won’t be as safe as portrayed in the pages of the Wall Street Journal and other publications targeted at wealthy professionals. Meanwhile, retail employment may be more dangerous than commonly understood.

Todd Bennett elected to The College of Workers’ Compensation Lawyers

Posted on March 25, 2019 by Rehm, Bennett & Moore, P.C., L.L.O.

Todd Bennett was recently inducted into the College of Workers’ Compensation Lawyers

Congratulations to Todd D. Bennett of the Rehm Bennett Moore Rehm and Ockander Law Firm who was inducted as a Fellow into The College of Workers’ Compensation Lawyers on March 16, 2019 in Miami, Florida.

The College of Workers’ Compensation Lawyers has been established to honor those attorneys who have distinguished themselves in their practice in the field of workers’ compensation. The college is a national organization that includes plaintiff’s attorneys, defense attorneys, judges and professors.

Fellows have been nominated for the outstanding traits they have developed in their practice of over 20 years representing injured workers and acting for the benefit of all in education, overseeing agencies and developing legislation. These individuals have convinced their peers, the bar, bench and public that they possess the highest professional qualifications, professional expertise and leadership. A Fellow has a thirst for knowledge in all areas of the law that affects their representation of their clients in Workers’ Compensation.

Todd Bennett joins his law partner, Rod Rehm, as the only two plaintiff’s attorneys in Nebraska who have been selected to the college. The other two members of the college from Nebraska, defense attorneys Dennis Riekenberg and Dallas Jones, were there in Miami when Todd was inducted into the college.

What happens when an injured worker misses a medical appointment?

Posted on March 21, 2019 by Jon Rehm

Missed medical appointments can effect a workers’ compensation claim

Injured workers may have to deal with scheduling medical appointments with multiple providers and all the other juggling of work schedules, travel and child care arrangements that go with seeing multiple doctors.So what happens when an injured worker misses a medical appointment?

Neb. Rev. Stat. 48-120 allows the Nebraska workers’ compensation court to reduce benefits if an employee refuses medical treatment provided by an employer. Likewise Neb. Rev. Stat. 48-134 allows the court to suspend benefits due if an employee refuses a medical examination requested by the employer/insurer. But even if a court reduces benefits for a refusal of medical treatment or a medical examination, that refusal of treatment or an examination would not effect whether a claim is covered by workers’ compensation.

Even if missed appointments don’t lead direcrly to denial of benefits, missing medical appointments can be used as a way to attack the credibility of an injured worker in court.

Unintentionally missing a medical appointment wouldn’t be a refusal of treatment, but I have seen insurers, particularly third-party claims administrators, deny claims where an employee misses a medical appointment for whatever reason.

Very rarely do I see my clients refuse medical treatment. Often times clients are talking to me until after care has been denied for whatever reason. But I often have clients who are suspicious of medical examinations set up by their employers for litigation purposes. I don’t blame them.

Why employers have broad authority to examine injured workers.

Neb. Rev. Stat. §48-134 requires injured workers to submit to a reasonable medical examination and deems an “unreasonable refusal” to submit to an examination as reason to deduct from compensation of an injury. The Nebraska Workers Compensation Court has also adopted the Nebraska Rules of Civil Discovery through NWCC Rule 4. Rule 6-335 allows a defendant to have the plaintiff to submit to an examination upon showing of just cause. A refusal of an injured worker to submit to an examination set up by their employer could also lead to financial sanctions under Rule 6-337.

Why it’s more difficult for an injured worker to get a medical examination in Nebraska.

In my experience, it is hard to quash a medical examination in a contested case. But if a plaintiff wants a medical examination under Neb. Rev. Stat. 48-134.01, it’s a different story. In order for the plaintiff to obtain a court ordered IME at the expense of the defendant, the plaintiff needs to establish medical causation and show there is some dispute between doctors that an independent medical examiner can resolve. Plaintiff’s can find some leverage under Neb. Rev. Stat. 48-120(5) which gives the court some authority to order medical examinations on their own outside the medical examination statutes at 48-134 and 48-134.01.

Recently an Ohio court suspended a claim for an employees refusal to submit to a psychological examination. I am fairly certain a Nebraska court would have ruled the same way as the Ohio court.

The recent Ohio case concerned an employee who was seeking medical treatment for psychological injuries. Such a case would be difficult to bring in Nebraska. In Nebraska when medical treatment is sole issue in the case, there must be a court-appointed medical examination before an employee can file a petition.

Settling a workers’ compensation and wrongful termination case at the same time

Posted on March 7, 2019 by Jon Rehm

Many employers want to settle all employment-related claims when they settle a workers’ compensation case

Clients often ask me, “If I settle my workers’ compensation case, can I still sue my employer for wrongful termination?” My answer is almost always yes. But for one unfortunate employee in Louisiana, it appears settling their workers’ compensation case may have doomed their wrongful termination case.

A federal district court in Louisiana held that a worker who settled their workers’ compensation case with a release that released all claims arising from their work injury was deemed to have settled their wrongful termination case under various civil rights laws.

The Louisiana decision raised the ire of some employee-side attorneys. Workers’ compensation laws and civil rights laws provide different remedies for different harms. A Minnesota court recently used this fundamental tenet of law to hold that a disability discrimination claim under their state’s civil rights laws was not barred by the exclusive remedy provision of their state’s workers’ compensation act.

But as a practical matter, some employers like to settle all claims arising out of the employment relationship when they settle a workers’ compensation case. In these cases there is usually consideration, or seperate amounts, to settle the workers’ compensation claim and the employment law claim. Sometimes this can be advantageous for a client. I am not sure of how the release was structured in the Louisiana case, but here is how I structure so-called global releases. In short, you need two releases: one for the workers’ compensation claim and one for the wrongful termination case.

Settling the workers’ compensation case

I wrote earlier about the so-called exclusive remedy of workers’ compensation. In Nebraska, that exclusive remedy also means the workers’ compensation court has limited jurisdiction. Nebraska courts have stated repeatedly that the Nebraska Workers’ Compensation Court can not adjudicate employment law cases because they are a court of limited jurisdiction. Neb. Rev. Stat. §48-139 gives the court jurisdiction over workers’ compensation settlements. 48-139 also dictates the language of workers’ compensation settlements, states when settlements must be approved by the court and mandates the filing of settlement papers with the court. In short, if the Nebraska Workers’ Compensation Court does not have jurisdiction to hear a wrongful termination or discrimination case, any settlements in that court should not effect any wrongful termination case or discrimination case.

Settling the wrongful termination or discrimination case

A settlement agreement in a wrongful termination case is a different document. Usually there is no requirement that it be filed or approved by a court. These agreements are often synonymous with severance agreements and oftentimes included language required by the Older Workers’ Benefit Protection Act if the employee is over 40 years old.

Settlement agreements in employment cases usually also talk mention tax liability. Tax liability is usually not mentioned in a workers’ compensation settlement as workers’ compensation benefits are almost never taxed. But settlement proceeds in a wrongful termination or discrimination case are usually taxable and those agreements should include some discussion of tax liability.

Sometimes employers will want a resignation as a condition of paying a settlement to an injured employee. If the employee is still working, that provision can be a deal breaker. But for an employee who has been terminated the extra money for a wrongful termination claim can be beneficial. Settling all claims at once may also help an employee minimize taxes by apportioning the majority of the value of the severance or employmennt law settlement into the non-taxable workers’ compensation settlement.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: Workers Compensation

How to get paid regular wages for missing work due to a medical visit in a workers’ compensation case

Who do rules about texting and driving really protect?

The hidden legal hazards of icy side streets

Neb. Ct of Appeals tightens notice requirements in workers’ compensation cases

Retail jobs surpass manufacturing jobs in injury rate

Todd Bennett elected to The College of Workers’ Compensation Lawyers

What happens when an injured worker misses a medical appointment?

Settling a workers’ compensation and wrongful termination case at the same time

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