Tag Archives: Nebraska

AMA Guides to Causation, AMA Guides to Impairment, Nebraska, Workers Compensation

Injured workers served poorly with AMA “cookbook” on causation

DON”T GET ON THE AMA CAUSATION GUIDES SHIP!!!

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

My friends and colleagues on the WILG listserv were discussing the AMA Guides to the Evaluation of Disease and Injury Causation, 2nd edition. The consensus was that the new guidebook treats injured workers, to quote the President, very unfairly.

Lawyers in Illinois and Montana have encountered the AMA Causation Guide. I encountered the causation guide in Nebraska this spring/summer in Tapee v. Nestle (available on NWCC Decision and Order Search by clicking here). My experience was that the trial judge was not impressed by the opinions of an examining expert who relied generalizations from studies rather than looking at the particulars of my client’s injury.

A colleague in Montana seemed to have a similar experience.  Another weakness of the AMA Causation Guides is that doesn’t address the fact that states have different standards for medical causation. For example, even if it’s true that occupational causes aren’t a prevailing factor in causing carpal tunnel syndrome, that doesn’t matter in Nebraska because a worker only needs to show that occupational factors were a contributing factor to the injury.

Even among WILG members, the AMA Guide to Causation is still confused with the better known AMA Guides to Permanent Impairment that have been subject to numerous court challenges. The so-called AMA 6th has long been a target of plaintiff’s lawyers because of how it reduces compensation for many types of permanent injuries. When the AMA 6th came out about 10 years ago, plaintiff’s lawyers were good about educating courts about the problems with the AMA 6th.

Nebraska isn’t bound by the AMA Guides to Impairment, but courts often follow them in determining permanent disability for scheduled member impairment. In 2010, one trial judge criticized the AMA 6th in Endorf v. Chief Industries (click here for NWCC Decisions and Orders Search) But the insurance defense bar was relentless in pushing the AMA 6th and it is often used as a basis to pay permanent impairment in Nebraska despite early misgivings by some workers’ compensation judges.

I suspect the insurance defense bar will be as relentless in pushing the AMA Causation Guides. From discussion on the WILG listserv, it appears as if there is a nationwide push to use the AMA Causation Guides. The AMA Impairment Guides are sometimes referred to as a “cookbook”. (Hence the headline and artwork for this post) But at least in Nebraska where the AMA Guides to Impairment are generally just applied to so-called “scheduled members” that are paid on a loss of use basis, I can see why a judge may rely on those guides. (The distinction between scheduled member disability being paid on a loss of use basis and non-scheduled injuries being paid on a loss of earning power basis in Nebraska seems to be largely a judge-made distinction)

But causation would seem to be a different story. Causation would seem to be an issue that Judge’s would still want to decide on an individualized basis rather than deferring to a book. But prolonged use of the AMA Causation Guides may eventually lead to an informal heightening for medical causation standards by workers’ compensation judges. 

Maybe this is burying the lead, but the more acute danger is that stae legislatures will adopt the AMA Guides to Causation like they did with the AMA Guides to Permanent Impairment.

Plaintiff’s lawyers have some studies they can use to the counter the AMA Guides to Causation. The American Academy of Orthopedic Surgeons have compiled studies about carpal tunnel syndrome that would contradict the studies that form the basis of the AMA Causation Guide. Plaintiff’s lawyers may also want to bone up on rules regarding expert testimony. At least in Nebraska, those rules don’t govern admissibility of medical evidence, in workers’ compensation but they can certainly be helpful to a court in weighing medical evidence.  NWCC Rule 10 narrowly defines who can testify by written report in our workers’ compensation court. In my experience, “non-Rule 10 experts” can make good witnesses for the plaintiff on cross-examination.

Lawyers for injured workers need to see recognize the threat posed by the AMA Guides to Causation and make every available factual and legal argument against its application at every opportunity –whether in a courtroom, a legislative committe hearing, at a legal confernece and/or on social media.

 

government, Legislation, Workers' Compensation, workplace injury

Opioids And Doctor Choice

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Chicago Mayor Rahm Emmanuel said in 2008 that “You never let a serious crisis go to waste.” In the context of opioids and workers compensation this could mean reforms to workers compensation systems beyond drug formularies If solving the opioid crisis means limiting the number of doctors who can prescribe opioids, then there will be fewer doctors who will treat workers compensation cases.

Additional licensure and certifications aren’t unheard of in the world of occupational health. In 2016, the Federal Motor Carrier Safety Administration implemented a new rule that only doctors on their registry can perform DOT Physical Examinations for truckers and other professional drivers. This reduced the number of doctors who can perform those examinations. 

When I testified on LB 408, a bill that would have implemented drug formularies for opioids under the Nebraska Workers’ Compensation Act, some doctors were testifying that there was little training in regards to prescribing opioids. Though an opioid prescription registry like the DOT examination registry wasn’t proposed, you could certainly see it proposed as a solution to the opioid problem.

By limiting the numbers of doctor who handle workers’ compensation claims through additional licensing requirements, injured employees will have fewer choices for medical treatment and are more likely to have their employer control their care.

Evidence shows that the workers compensation system has made some contribution to the opioid crisis. According to a 2015 report by the Bureau of Labor Statistics over 3.5 million employees were injured at work. Half of those injuries required the employee to miss sometime from work. A study of employees in 25 states done by the Workers Compensation Research Institute revealed that 55 to 85 percent of employees who missed at least one week of work were prescribed at least one opioid prescription.

When I testified on LB 408 the consensus among the doctors testifying on the legislation was that injured workers were more vulnerable to narcotic addiction than other patients who are prescribed narcotic pain medication. Scientific studies give some credence to these conclusions. Workers compensation claims can cause economic insecurity. According to an article in Scientific America, Addiction rates for opioids are 3.4 times higher for those with incomes under $20,000 per year than they are for employees making more than 50,000 per year.

But that article also shared studies that state that pain pill prescriptions are not driving the opioid epidemic. Patients with pre-existing addiction issues are more likely to become addicted to opioids and 75 percent of those who develop opioids start taking opioids in a non-prescribed manner. Furthermore, only 12 to 13 percent of ER patients who are treated for opioid overdoses are chronic pain patients.

Workers’ Compensation is traditionally an area of the law that is controlled by the states. Regulation of drugs is generally an area reserved for the federal government. Any laws imposing additional hurdles or requirements upon doctors who prescribe opioid drugs may have to come from the federal government.

government, Workers' Compensation

Why Immigration Policy Changes Will Probably Impact Workers Compensation

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

In theory, the changes to immigration policy proposed by President Trump shouldn’t impact workers compensation in Nebraska. Workers compensation laws are state laws and Nebraska, like most states, awards workers compensation benefits regardless of immigration status.

But theory is one things and reality is another.

Mike Elk of Payday Report recently ran an article detailing that workplace deaths among Latinos were the highest in 2015 than they had been since 2007. This spike was attributed in part to aggressive immigration enforcement by the Obama administration which immigrant advocates believed made workers afraid to speak out about working conditions over fear of deportation.

During the Obama administration tougher immigration policies were at least coupled with tougher and even innovative workplace safety enforcement by OSHA. In the Trump era, workplace safety enforcement is expected to be curtailed and new OSHA rules are poised to be rolled back.

Immigration and workers compensation is often thought of in the context of Mexicans and central Americans working in industries like meatpacking and construction. This is a misconception, the meatpacking industry in Nebraska and elsewhere employs an uncounted but significant number of Somali workers. Somalis are one of seven nationalities banned from entering the United States under President Trump’s order. Ironically Somalis were recruited heavily into meatpacking work after raids during the Bush administration lead to the deportation of Latino meatpacking workers. Somalis had refugee status so there were few questions about their immigration status or eligibility to work legally. Under the new executive order, their immigration status is less secure and they may be less likely to speak out about working conditions.

A smaller but growing number of Cubans are coming to Nebraska for meatpacking work as well. Like Somalis, Cubans are deemed to be refugees so their ability to work lawfully is not a question for employers. However in the waning days of Obama administration, President Obama ended automatic refugee status for Cubans in an effort to normalize relationship with the Castro regime. There was little public outcry over this order like there was for the so-called Muslim Ban. However because of an executive order, Cuban nationals working in Nebraska may be less inclined to speak out about working conditions or claim workers compensation benefits due to newfound uncertainty over their immigration status.

Fraud, Workers' Compensation

Are You Really an Independent Contractor?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

“Calling a dog’s tail a leg does not make it a leg.” Abraham Lincoln

FedEx drivers recently won two class-action lawsuits in the 9th Circuit Court of Appeals. The court ruled that FedEx wrongfully withheld overtime pay, Social Security, unemployment, Medicare and other benefits to drivers because they were misclassified as independent contractors rather than employees. The decisions were driven by the fact that FedEx exercised control over the appearance of drivers as well as what packages to deliver, on what days, and at what times.

Though the FedEx decision only applies to Oregon and California, it is very possible that a similar decision would have been made under Nebraska law. Under the Nebraska Wage Payment and Collection Act as well as under the Employment Security Law, Neb. Rev. Stat. 48-601 et al., there is a five-part test as to whether a worker is an independent contractor or employee.

  1. Individual is free from control or direction under contract of hire
  2. Individual is free from control or direction as a matter of fact
  3. Service is outside the usual course of business for which service is performed
  4. Such service is performed outside of all the places of business of the enterprise which such service is performed
  5. Individual is customarily engaged in an independently established trade, business or profession.

Nebraska law creates a presumption of an employer-employee relationship. Tracy v. Tracy, 581 N.W. 2d 96, 7 Neb. App. 143 (Neb. Court of Appeals, 1998) In short, if you can answer most of those questions “no,” you are very likely an employee rather than an independent contractor. The mere fact that you may have signed a documents stating you are independent contractor does not necessarily mean you are an independent contractor.

In addition to protections under federal law, asking questions about your employment status is also a protected activity under Nebraska law. Being misclassified as an independent contractor could cost you thousands of dollars in wages and benefits. However, you have the ability to fight back if you are being misclassified.

Workers' Compensation

Facebook Pictures’ Use Evolving in Workers’ Compensation Cases

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

We routinely advise our clients to be aware of the possible discovery of Facebook and other social media sites. First step – check your privacy settings. If you do not control your privacy settings, your employer or the insurance carrier may easily access your posts. Also, do not post comments about your case, your employer, or your injury online.

In the past, I have warned about the possible pitfalls of social media on a workers’ compensation claim.

However, the Nebraska Workers’ Compensation Court has never really ruled on Facebook in the context of discovery matters in a work comp claim, meaning how much access can your employer have to your Facebook account if you file a workers’ compensation claim? 

Recently, however, the Nebraska Workers’ Compensation Court (at least one judge) has taken the position that in order for your employer to gain access to photographs from your Facebook profile, it must “make a showing of the necessary factual predicate underlying [the] broad request for access.” In other words, your employer must have a decent reason to suspect that a certain photograph or something from your Facebook account has the potential to be relevant to the work comp case before the court will simply grant full access to your Facebook account to your employer.

Therefore, depending on your situation, your Facebook may be safe from your employer to some degree. However, this is a cautionary tale to remind you that even though your employer cannot simply have blanket access to all of your Facebook photos – at least according to one Nebraska judge – it does not mean that your Facebook photos or posts are necessarily safe from your employer gaining access to them at some point during your work comp case. I think the judge in this case takes a step in right direction, but you still must be aware that anything you put on Facebook may be subject to discovery (i.e., your employer may still possibly get access to it) at some point in the future.