Archive for May, 2011

May 30, 2011

Are fraud and misrepresentation claims the best way to enforce doctor choice for injured workers?

A case out of Texas may provide injured workers to a way to enforce their state’s doctor choice laws.  In Warneke v. Nabors Drilling USA, a Texas appellate court held that a workers’ fraud and misrepresentation case against his employer for lying about having workers compensation coverage was not barred by the exclusive remedy of the workers compensation statute because the fraud was separate from the work injury.

In Warneke, the employer lied when it told their injured employee that they did not have workers compensation insurance. The court said the fraud caused the plaintiff to incur unpaid medical bills as well as emotional damages from economic distress.

Fraud and misrepresentation in regards to doctor choice could be proved to showing that the employer and/or insurer knew that an injured worker could chose their own doctor yet told the worker they could not see their own doctor. Damages in a doctor choice fraud case could be pain for working while the worker should have been on light duty and/or off work. A fraud claim could also be paired with a constructive discharge claim if working while an injured workers should have been convalescing caused an injured worker to quit.

A doctor choice faruad case many challenges. First of all it would likely require a medical doctor to examine an injured worker and to review the records of the employer-chosen doctor to see if the treatment was appropriate. That would be a major expense. Secondly, should such a case get to a jury there is the ingrained bias that workers compensation fraud is usually committed by workers trying to “milk the system.”

A workers compensation doctor choice fraud and misrepresentation claim would be difficult to prosecute, but as a fellow trial lawyer told me at a recent AAJ membership and PAC drive, if things were easy people wouldn’t need lawyers.



May 27, 2011

Tyson not liable for “donning and doffing” pay at Lexington, NE plant

A Nebraska jury decided yesterday that Tyson did not wrongfully withhold pay from its workers for time putting on and taking off safety gear at its Lexington, NE plant. The suit against Tyson’s Lexington, NE plant is one of many against Tyson and the meatpacking industry in general for pay for time putting on and taking off gear.  There is currently a suit involving Tyson’s Madison, NE plant pending trial. 

May 26, 2011

Nebraska passes positive procedural workers compensation reforms

Nebraska has enacted key procedural reforms to its workers compensation statute that will benefit injured workers. Nebraska bucked a nationwide assault on the rights of injured workers. Among the positive reforms passed by Nebraska are:

A. Elimination of the three-judge review panel: Appeals from the trial court level in the Nebraska Workers’ Compensation court are heard by a panel of three other workers’ comp court judges before they are heard in the Court of Appeals. In Fiscal 2010, trial judges in the comp court issued 300 decisions of which 71 were appealed to the review panel . Only 21 were appealed up to the Court of Appeals/Supreme Court level. Eliminating the review panel will benefit workers because it will shorten the time defendants can delay payment of benefits based on appeals of fact questions. As it stands now, parties are guaranteed a free appeal to the Review Panel. That review panel normally takes 6-8 months to decide an appeal after the trial court decision is handed down the original decision.  After the review panel, parties can appeal to the Nebraska Court of Appeals. However if a party is appealing a fact question, the other party can file for summary affirmance under Neb. Ct. R. App. P. 2-107 and dispose of the case quickly.

Under the new law, parties making appeals on fact questions should have those appeals snuffed out on summary affirmance, thus shortening the typical appellate process in the comp court.

B. Trials by video conference: The new law will also allow trials by video conference if both parties agree. This is a positive development for workers who were injured in Nebraska and have moved out of state or workers who live out of state but work for Nebraska-based trucking companies.  Injured workers are often in dire financial straits and it is hard for them to afford to come back to Nebraska for trial. This reform will hopefully reduce litigation expenses for injured workers.

May 24, 2011

Is “icing and heating” the new “donning and doffing”?

Today I received a call from a union official at a local packing plant asking me if the company could force injured employees to apply ice and heat to their injuries during break.

I answered it depends on whether the company or the employee receives the predominant benefit of the icing. The predominant benefit analysis is the framework for deciding “donning and doffing cases.” In donning and doffing cases, the issue is whether taking off and putting on safety equipment before and after a shift as well as  during meal and break times should be paid. I think the same analysis could work for “icing and heating.” One argument for icing and heating time not being compensable is that the pain relief predominately benefits the employee. However, employers argued in the donning and doffing cases that wearing safety gear benefits employees, but courts have still found the predominate benefit question to be one answerable by a jury.

May 22, 2011

SCOTUS decision on whistleblowers terrible for taxpayers, employees

The United States Supreme Court’s  recent decision in Schindler Eleavator Corp. v. United States ex rel Kirk is a terrible decision for taxpayers and employees.

A majority of Justices comprising Justices Samual Alito, Justice Anthony Kennedy, Chief Justice John Roberts, Justice Antonin Scalia and Justice Clarence Thomas ruled that employees could not solely rely on information obtained in Freedom of Information Act  (FOIA) requests as a basis for whistleblower claims under the False Claims Act.

The whistleblower provision of the False Claims Act (FCA) allows private citizens with evidence of fraud against federal programs or contracts to sue on behalf of the government and collect a percentage of what the government recovers.  The policy behind the act is that the government doesn’t have the resources to completely root out fraud,  so it should rely on private citizens to prevent misuse of tax dollars. The majority in Schindler ruled that results of  Freedom of Information Act requests were similar to public reports such as congressional investigations and hence employees and private citizens were barred from solely relying on such information in a lawsuit.

The three judge minority comprising Justices Stephen Breyer,  Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor rightly pointed out in their dissent that not allowing plaintiffs  to rely on FOIA requests left plaintiffs without a way to corroborate their allegations and made suits more vulnerable to motions to dismiss based on the pleadings.  Whistleblowers are also subject to retaliation and ostracism by their employers for making complaints. Before an employee subjects them self from such negative consequences, the employee should have an idea of whether a whistleblower lawsuit stands a reasonable chance of success before they file.  FOIA requests are an effective way for employees to substantiate allegations of wrongdoing by their employers.

Fraud and abuse against government contracts is a major problem. Lincoln, NE-based student loan company Nelnet recently settled an whistleblower suit for$47 million. Medicare fraud contributes to the spiraling cost of health care.  An investigation by Senator Bernie Sanders (I-VT) revealed that $285 billion dollars in Pentagon contracts over a three year period were awarded to contractors who were convicted or who had settled fraud charges. Money that enriches fraudulent defense  contractors is money that is taken away from our troops in Iraq and Afghanistan.

Often times advocates from employee-rights issues are social and/or economic liberals. However preventing fraudulent use of taxpayers dollars should concern conservatives concerned about the use of taxpayers dollars and national defense. Hopefully such bi-partisan concern about fraud and abuse against government programs will lead Congress to pass legislation remedying the effects of the Schindler decision.

May 21, 2011

Ben Nelson was wrong on Goodwin Liu

Nebraska Senator Ben Nelson was the sole Democrat to side with the GOP in a successful effort to prevent a vote on the nomination of Goodwin Liu to Ninth Circuit Court of Appeals.

Liu’s nomination was supported by the National Employment Lawyers Association, a group representing plaintiff’s side-employment attorneys. In an e-mail to members, NELA stated it supported Liu “based on his record of commitment to and respect for justice and  equality in the workplace.”

As pointed out by Sam Stein of the Huffington Post, Nelson voted for cloture on many appeals court nominations made by President George W. Bush.  In 2005 Nelson wrote that “the president’s nominees, especially to the Supreme Court, deserve an up-or-down vote” in regards to his vote on Justice Samuel Alito the United States Supreme Court. Apprarently Nelson believes President Obama deserves less deference that President Bush. Nelson’s vote is even more infuriating considering the impeccable credentials possessed by Professor Liu who was a Rhodes Scholar and a clerk for Justice Ruth Bader Ginsburg.

Nelson’s vote against against cloture on Liu is even more outrageous than his vote against confirming Elena Kagan. As a longtime participant and observer of politics in Nebraska, I think such efforts to mollify conservatives are stupid and futile. Nelson’s vote on Liu will do nothing to calm conservative animosity while it will just dampen further the lack of enthusiasm among progressives in Nebraska for Ben Nelson. While progressives are a minority in Nebraska, their support is the lifeblood of any successful Democratic campaign in this state.

May 19, 2011

Tentative deal reached with business interests on CIR reform

Nebraska State Senator Steve Lathrop announced yesterday business interests had agreed to a tentative compromise on CIR reform. While details of the legislation are uncertain, Lathrop is confident that Governor Dave Henieman will support the bill that changes how public sector unions assert their collective bargaining rights.

While the exact terms of the deal are uncertain, it is my view that this legislation will likely represent the least worse option for public sector employees.  If this deal is passed into law, Senator Lathrop should be commended for his efforts in trying to  fairly balance the interests of business, governments and public employees.

May 19, 2011

Physician choice crucial to work comp claimants

I had this scenario arise at a deposition this morning:

My client is suffering from bi-lateral (both hands) carpal tunnel. So far her claim has been paid, but now she needs surgery. However she doesn’t want to have surgery because she has heard the surgeon has had bad results with others and she feels the doctor is too deferential to her employer — a major employer in a smallish community.  Her current surgeon was referred to her by her family doctor.

So is my client forced to chose between not treating her wrist injuries or being treated by a doctor she doesn’t trust?

Fortunately, in Nebraska, the answer is no thanks to Rule 50(a)(5) of the Rules of Procedure for the Nebraska Workers’ Compensation court which gives injured workers the right to chose their own doctor for a major surgery.  Physician choice is a positive in and of itself. But in a workers compensation claim, the opinions of doctors drive the determination of how a claimant will be paid for their temporary and permanent disability.  Medical opinions also drive to what extent courts will award claimants past, present and future medical care.

Employers and insurers know doctor choice is important, which is why they often try to steer their injured workers towards doctor’s known to be friendly towards employers/insurers. Employees are often told they have to go see a doctor who their employer wants  them to see and that they can’t go see their own doctor. In Colorado, Wal-Mart is being sued in a Civil RICO class action for conspiring with Concentra to manipulate the medical care of 8,000 injured workers in Colorado. Civil RICO is a difficult legal claim to make, but in my experience — and in the experience of countless other workers’ compensation claimant’s attorneys — employers/insurers have a cozy relationship with occupational medicine outfits like Concentra. Employers/insurers often try to steer their workers, especially their low wage workers, to clinics like Concentra.

At present the best and only real way for injured workers in Nebraska to enforce their rights to chose a doctor to treat their work injury is to hire an attorney with knowledge of Nebraska physician choice rules. However I think an employee could make a claim against their employer for interfering with their freedom to chose their own doctor under a retaliation framework. Retaliation is defined as “ an adverse impact on the employee (that) must effectuate ‘a material change in the terms or conditions of … employment.’ Stated another way, ‘proof of an adverse employment action requires a tangible change in duties or working conditions that constitute a material disadvantage.” ’ Jones v. Fitzgerald, 285 F.3d 705, 713 (8th Cir.2002) (internal citations omitted). Examples of material disadvantages that may constitute an adverse employment action include a detrimental change in salary, benefits, or responsibilities. Tademe v. Saint Cloud State Univ., 328 F.3d 982, 992 (8th Cir.2003).

The argument that interfering with physician choice is retaliation is that it reduces the workers compensation benefits to which a worker is lawfully entitled.  I don’t think such a claim has been litigated in Nebraska or anywhere else, but I think the idea merits more discussion and lawyers willing and able to litigate such a case under the right set of facts.

May 17, 2011

Heineman takes hard line against public employees

Nebraska Governor Dave Heineman threatened to veto a bill that would change how public sector employees collectively bargain because the bill does not go far enough in restricting the the collective bargaining rights of public employees.

Heineman announced yesterday that he supports a version of Commission of Industrial Relations reform backed by the Omaha, Lincoln and Nebraska chambers of commerce.  The business communities approach would preclude the CIR from intervening in wage disputes only if the proposed wages fell below 85 percent of the prevailing wage rate in the area. The prevailing wage rate takes into account private sector employees.  Public employer could also unilaterally change non-contract benefits under the proposal Henieman supports.

The proposal Henieman supports is response by business interests to LB 397. The legislature gave first round approval to LB 397 by a  a bill that would change how the Commission of Industrial Relations decides labor disputes between local governments and public sector unions. In Nebraska public sector unions do not have the the right to strike, but they have the ability to appeal collective bargaining disputes to the Commission of Industrial Relations. LB 397 would allow the CIR to compare wages to local private employers in disptues. Currently wages are compared to public sector wages in similar sized cities. Critics of the current CIR argue that Omaha and Lincoln are often compared to much larger metropolitan areas with higher costs of living. Another reform of LB 397 is to allow the CIR to take fringe benefits into account when determining wage level. Some public sector unions have criticized aspects of LB 397 as weakening their collective bargaining rights.

Heineman has hinted that he would support a ballot initiative in 2012 if the legislature failed to pass CIR reform that satisfies business interests.

May 15, 2011

Wage and Hour trial for Tyson Lexington, NE plant starts May 16th

Workers at the Tyson Fresh Meats plant in Lexington, Nebraska will get their day in court starting on Monday to determine whether they were wrongly denied pay for taking off and putting on protective safety gear.

The main issue in this case is whether time spent putting on and taking off protective gear at the beginning and end of break and meal times benefited Tyson or the workers. If the jury determines the time spent donning and doffing mainly benefits  Tyson, the employees will win.  Tyson’s argument is that the time spent donning and doffing gear was during break time so the time primarily benefited the employee.

The Lexington, NE case is just one of many what are called “donning and doffing cases”  filed against Tyson.  A  donning and doffing class action involving Tyson’s Madison, NE plant was certified in March.

The future of wage and hour class action claims is in doubt following the recent decision U.S. Supreme Court decision in AT&T v. Concepcion. Concepcion held that state law could not preclude contractual arbitration agreements not to participate in class action litigation.  Some attorneys have theorized that employers could make agreements not to participate in class actions part of an employment application.  However advocates for employees may be able to make an end run around Concepcion by arguing that class action litigation is a protected concerted activity under the National Labor Relations Act. Concepcion has broad implications beyond the world of employment litigation. Those with an interest in workplace law will be watching closely how courts interpret Concepcion.