Archive for January, 2012

January 25, 2012

County judge orders work comp collections case removed to District Court

This afternoon a County Court judge sustained my motion to transfer a collections case from a workers comp related medical bill to District Court in order for me to ask for injunctive relief. You can read the reasoning behind my motion and why it helps debtors by reading my post from yesterday. In short,  District and County Court’s have concurrent jurisdiction in civil cases under $45,000 in Nebraska. County courts do not have general equitable jurisdiction but District Courts do.  In a previous hearing, the County Court determined I didn’t have a statutory or case law basis to dispute the right for a provider to collect on medical bills in a disputed workers compensation case.  Since I had no legal remedy, I asked for the right to transfer to District Court to pursue an injunction against collecting the unpaid medical bill.  Since equitable relief is not available in County Court, the court has no choice but to remove the case to District Court under Neb. Rev. Stat. 25-2706. I also argued that denying my client the chance to pursue available equitable relief would be a due process violation. In granting the motion, the Judge commented that moving the case to District Court would not prejudice the creditor because they still had the right to a trial in District Court.

The threat of injunctive relief in a work comp related collections case gives injured workers more leverage in their negotiations with bill collectors. Hopefully more advocates for injured workers will use this tool to protect their clients.

January 24, 2012

Equitable relief is a powerful tool to defend work comp-related collections cases

An on-going hassle for injured workers and their attorneys is what to do when medical providers attempt to collect bills for services that are denied by the workers compensation insurer. Iowa has a statute preventing collection of unpaid medical bills during the pendency of a workers compensation case. Nebraska does not have such a statute. However injured workers and their attorneys have the option of asking for equitable relief in the form of an injunction on collection of bills they claim are related to their workers compensation court. This article will show you the simple steps of how to make your case for equitable relief.

Jurisdiction

Most collections cases related to unpaid medical bills are filed in County Court in Nebraska.  However, County Courts can not grant injunctions because they do not have general equitable jurisdiction possessed by the District Courts.  Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d 554 (1991) However the District Court and County Court have concurrent original jurisdiction in civil matter under $45,000. Neb. Rev. Stat. §24-517.   The County Court is supposed to transfer a case to the District Court when the relief requested is exclusively within the jurisdiction of the District Court. Neb. Rev. Stat. §25-2706.  In my view not granting a motion to transfer would be an abuse of discretion by the County Court. No person shall be deprived of life, liberty, or property, without due process of law, nor be denied equal protection of the laws. Neb. Rev. Stat. CONST. Art. I, § 3: See also U.S.C.A. Amd. V.  The essence of procedural due process is simply that fundamental fairness which a person has the right to expect-even demand-and receive through our system of law.  Appeal of Levos, 214 Neb. 507, 515, 335 N.W.2d 262, 267 (1983) My opinion is that if equitable relief is available to the defendant in a collections case, it is unconstitutional to deny that defendant the right to ask for equitable relief by denying a motion to transfer to District Court. Essentially the court would be asking the defendant to fight the collections case with one hand behind their back.

Building your equitable case

I think the following facts would lead to a District Court granting injunctive relief in a collections case related to a workers compensation injury.

1. Strong evidence of the unpaid bills being reasonable and necessary because of the work injury. This evidence would come in the form of a causation opinion and an order from treatment from a doctor. Evidence of medical causation allows you to argue that the medical provider has a reasonable expectation of payment.

2. Evidence of payments by private health insurance.  This is important because it shows that the medical provider has paid something for their services.

3. If the worker has no private insurance, present evidence that your workers is willing and able to make installment payments. Even better evidence would be evidence from other medical providers showing they were willing to accept small installment payments.

Another argument to make in an equitable case is to bring up the fact that if your client was on Medicaid and the provider accepted Medicaid, that the provider would be paid pennies on the dollar and would be forced to write off the balance. How fair would it be for someone who paid $.60 on the dollar through their private insurance for services to face a judgment while the person who paid $.20 on the dollar through Medicaid had their balance wrote off.?

Interaction between Law and Equity

Many workers compensation lawyers in Nebraska defend collections suits by arguing that Neb. Rev.  Stat.  §48-120 precludes collections for workers compensation bills as a matter of law. I’ve made that argument, but judges seem to agree with collections attorneys when they argue that 48-120 doesn’t apply because if a claim is denied there is probably a factual reason. I’m not going to get into a detailed analysis of the merits of this argument. I think the best approach to defend collections claims stemming from workers compensation accidents claims is to file a legal motion to dismiss paired with a motion to transfer to District Court to ask for equitable relief if the motion to dismiss as a matter of law is overruled. 

 

January 20, 2012

Can you be fired for something your spouse says on Facebook?

Some married couples have joint Facebook accounts  for example “JackandJill Jones”. However people should be aware what a spouse posts under a dual account can lead to a lawful termination of the other spouse. Here is a scenario from a person who called in yesterday.

A woman was fired from a professional job for comments made by her husband on their dual Facebook account. Without getting into details, the post by the husband had 1) nothing to do with the terms and conditions of his wife’s employment 2) was on a topic of no public concern and 3) was related to a post that was demeaning to women and encouraging behavior that can be best described as immature.

Someone with a grudge against the husband and wife, told the wife’s boss about the post and how it didn’t make her employer look good to have one of their professional employees making such comments. The person who tattled to the wife’s employer had a grudge not related to the wife’s employment. The wife’s employer agreed the Facebook posts made by the husband under the dual account were unprofessional and forced the wife to resign. The wife was an at-will employee.

Besides filing for unemployment, my advice to the woman as that there was nothing to she could do under Nebraska law. The posts created a legitimate business reason to terminate her employment.  The lesson here is that joint Facebook accounts can create serious problems.

January 10, 2012

8th Circuit upholds enforcement of arbitration award favoring worker in return to work grievance

Evidence of uneven application of a return to work policy lead the 8th Circuit to uphold enforcement of a  Missouri court’s  enforcement of an arbitration award forcing an employer to pay for a Functional Capacity Examination for a union employee with conflicting work restrictions.

The worker returned to work from a back injury with his family doctor returning him to work with no restrictions. Employees were required to take a functional capacity exam to determine whether they could meet the physical requirement of the job as a ready-mix cement truck driver. The worker in this case failed the functional capacity test and was sent to a neurosurgeon who opined that the worker was able to safely lift 40 pounds, while the requirement for the job was lifting 60 pounds.  About a month later, the employee re-submitted his family doctor’s opinion stating he had no restrictions. The employer then required the employee to have an independent medical examination. That doctor opined plaintiff could lift 45 pounds, which would disqualify him from working as a ready-mix concrete truck driver. The union filed a grievance to force the employer to pay for a second FCE.

However, the arbitrator was persuaded by the fact that two other workers were allowed to return to work after re-taking failed FCEs. The employer tried to distinguish those employees by stating they did not have doctors notes stating they had medical restrictions. The arbitrator was not persuaded by that argument and the 8th Circuit deferred to the arbitrator because the employer conceded that any work or safety rule they made had to be reasonable. The 8th Circuit applied the proposition that when work and safety rules made by an employer have to be reasonable, the application of those rules is a question of reasonableness. Because the arbitrator was applying a reasonableness standard, the arbitrator was acting within the essence of the collective bargaining agreement and the court could not review the merits of the arbitrator’s decision.

This case holds many lessons. Among them:

1.) Employers almost always have the right in collective bargaining agreements to make work and safety rules. Unions need to make sure it is spelled out that those rules must be reasonable. An employer may not concede to that fact like this employer did. Plus the arbitrator may not make reasonableness an implied term of the collective bargaining agreement. Barring explicit language on a reasonableness, a concession by the employer or the arbitrator making a reasonableness an implied term, the 8th Circuit could be reluctant to defer to the arbitrator’s decision on the merits of a case.

2.) Physical restrictions are imprecise. Doctors can be all over the place, which just re-enforces the importance of listening to a workers version of their restrictions and trying to work within those restrictions and the doctor-given restrictions.

3.) Accommodation of a disability or perceived disability is all about a fair process. In an unionized workplace, that process will likely be more burdensome on the employer depending on the terms of the collective bargaining agreement.

4) Employers need to equally apply policies to similarly situated employees and not split hairs over what constitutes a similarly situated employee.