Category Archives: Workers’ Compensation


Workers’ Compensation Basics: Payments to Workers and their Families

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

Here’s the next installment in the firm’s series that focuses on the basics of the workers’ compensation system. It gives information on how payments to injured workers and/or their families are handled. 

Workers’ compensation generally pays by the week, although it may be paid bi-weekly or monthly in some circumstances. The amount of the payment is established by state laws or statutes, regulation or court decision. 

Family members are paid in the event of the death of a worker arising from an accident or disease. Family members are occasionally paid for providing home-health care.     

The amounts paid and duration of payment varies from state to state. Generally there is a minimum and a maximum. The maximum is usually two-thirds of the gross wages earned, with a limit that is adjusted from time to time. 

To calculate the amount actually paid, most states use average wages for a specified number of weeks or months before the injury, death or disease. 

Payments are made for temporary inability to work, which is generally labeled temporary total disability. There may be a waiting period before payments begin. The waiting period varies from state to state. 

Payments are also made when a worker is temporarily limited to light duty and working either fewer hours or for a lower rate of pay. These benefits are called temporary partial disability. 

Payments are made for permanent inability to work and, if severe enough, some states pay for the worker’s lifetime. Some states do not pay for less than lifetime. These benefits are called permanent total disability. 

Payments are made for permanent reduction of the ability to work. This benefit is normally labeled permanent partial disability. 

Payments that are made for loss of body parts or limited use of body parts are also labeled permanent partial disability. State law establishes the value of the various body parts. 

Payments are less frequently paid while workers are participating in retraining or vocational rehabilitation. This is not a common benefit. 


It is important to contact an experienced workers’ compensation lawyer if you have questions or concerns about any of the information shared here. Please read the previous blog posts in the workers’ compensation basics series by clicking on these links: 


Occupational Asthma, or Work-Related Asthma, and Workers’ Compensation

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Occupational asthma (OA) is asthma that’s caused or worsened by breathing in chemical fumes, gases, dust or other substances on the job. Typical symptoms of OA are: chest tightness, wheezing, and shortness of breath. OA accounts for approximately ten to twenty-five percent of adult onset asthma. (Dykewicz, MS. Occupational Asthma: Current Concepts in Pathogenesis, Diagnosis, and Management. J Allergy Clin. Immunol. 2009; 123:519.)

Under North Carolina workers’ compensation laws, OA is considered an occupational disease pursuant to North Carolina General Statute §97-53(13). In order to obtain workers’ compensation benefits for OA, an injured worker must show that s/he was at an increased risk of developing OA as a result of his/her employment. Furthermore, the injured worker must show that his or her exposure at work was a significant contributing factor to his/her development of OA.

Treatment with a pulmonologist is essential for the injured worker’s recovery. Frequently the injured worker must avoid working in conditions (i.e. fumes) that will irritate his/her underlying condition. Certain professions are known to have higher likelihood of developing OA. For example, foam insulation installers exposed to diisocyanates, refinery workers exposed to metals (chromium, platinum, nickel), textile workers exposed to dyes, and health care workers exposed to formaldehyde are just a few examples of industries where workers are at an increased risk of developing OA. The Canadian Centre for Occupational Health and Safety published an online Fact Sheet which lists dozens of occupations where workers are at risk for developing OA.

Clearly, the best way to prevent OA is for workers to avoid using or being exposed to harmful substances. If this is not possible, then employers should make efforts to minimize employees’ exposure through ventilation systems or other methods. If you are concerned about your exposure to a substance at work, your employer should have material data safety sheets (MSDS) on site so that you can review any potential health hazards. As always, prevention and education of employees about proper handling procedures is key.


We’re Having A Worldwide Heat Wave: How You Can Stay Safe

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

A few weeks ago, I read about a crisis occurring in Pakistan and India. In Pakistan, a week-long heatwave killed more than 1,200 people and in India, the heat killed close to 2,200. Tens of thousands more were treated at area hospitals for heatstroke. It appears that the combination of prolonged temperatures above 100 degrees combined with power outages had a devastating impact on people.

As I read the news while sitting in the comfort of my air conditioned home, I thought briefly about the fact that we are all so lucky that events such as this rarely happen in this country. We have the resources and the alternatives available if we lose power or if we don’t have air conditioning during a heat wave. The City regularly opens up cooling centers or keeps City pools open longer so that residents are able to combat some of the more severe heat of the day.  However, not all of us are lucky enough to work inside where it is cool or engage in work activity that is not strenuous. What about those who work outside, or do heavy labor without the benefit of air conditioning? How do they protect themselves from the extreme heat that may be a part of their everyday work?

I was surprised to find out that each year, hundreds of people die due to heat-related illnesses and thousands more become ill. Outdoor workers are particularly vulnerable to heat stress.  According to the U.S. Department of Labor Blog, thousands of employees become sick each year and many die from working in the heat. In 2012, there were 31 heat-related worker deaths and 4,120 heat-related worker illnesses. Labor-intensive activities in hot weather can raise body temperatures beyond the level that normally can be cooled by sweating. Heat illness initially may manifest as heat rash or heat cramps, but can quickly escalate to heat stroke if precautions aren’t taken.

I am always surprised when I see firefighters on days with extreme heat fighting fires or see construction workers, road workers, or landscapers outside in the day-time heat engaged in strenuous physical. I often wonder how they are able to work without collapsing. The answer is that many of these workers become used to the extreme heat and are acclimated to it. Heat illness disproportionately affects those who have are not used to working in such extreme temperatures, such as new or temporary workers.

The Occupational Safety and Health Administration has a campaign to prevent heat illness in outdoor workers. It recommends providing workers with water, rest, and shade, and for them to wear light colored clothing and a hat if possible. OSHA advises that new workers or workers returning from vacation should be exposed to the heat gradually so their bodies have a chance to adapt. However, even the best precautions sometimes cannot prevent heat-related illness.   According to WebMD, signs of heat exhaustion include fatigue, headaches, excessive sweating, extreme thirst, and hot skin. If you have signs of heat exhaustion, get out of the heat, rest, and drink plenty of water. Severe heat illness can result in heat stroke. Symptoms of heat stroke include convulsions, confusion, shortness of breath, decreased sweating, and rapid heart rate, and can be fatal, so please be aware and seek immediate medical attention if you have any of these symptoms.      

For those who work outside in the boiling heat, heat illness can be prevented. However it can also kill so please be careful and remember – water, rest, and shade. 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.   


WILG Turns 20! Worker’s Injury Law And Advocacy Group 20th Anniversary

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

I joined WILG in its 1995 inaugural year. At those early conferences, my colleagues around the nation were battling workers’ comp “deform,” and engaged in political battles in their respective states, lobbying legislators on behalf of injured workers’ rights.

I thought I was relatively insulated in Wisconsin, the national “model” state for workers’ comp, with an Advisory Council composed of management and labor which each biennium produced an “agreed-upon” bill that was accepted by the legislature.

The Republican ascendancy in Wisconsin (Scott Walker as Governor, and both Assembly and Senate controlled by Republicans) has decided to ignore 100 years of progressive legislation and ignore the Advisory Council’s recommendations. This dangerous precedent will make workers’ comp more politicized, and threaten the stability of Wisconsin’s workers’ comp system. Wisconsin, like other states, will be part of a “race to the bottom” in workers’ rights and benefits.

WILG’s current President, Matt Belcher of Illinois, provided this summary of the state of workers’ comp as WILG celebrates its 20th anniversary:

”We have never been better positioned as a national organization to advocate on behalf of the families of injured workers.

Recent success in reviewing courts have highlighted nationally the unconstitutional danger posed to the community when injured workers lose access to effective legal representation, have capricious benefit limits imposed upon them, or are disabled due to unfair medical treatment bureaucracies.

WILG and its members have been at the fore of litigation battles where catastrophically injured workers have lost their savings, been forced onto welfare rolls and into Social Security Disability plans while simultaneously being denied access to the civil courthouse and the free exercise of their 7th amendment right to a jury trial. See Wade v. Scott Recycling (Virginia); Malcomson v. Liberty Northwest (Montana); Pilkington & Lee v. State of Oklahoma (Oklahoma); Padgett v. State of Florida (reversed on procedural grounds), Westphal v. City of St. Petersburg, and Castellanos v. Next Door Company (Florida).

The United States Department of Labor in coordination with OSHA have finally “discovered” that employee misclassification and wage theft are rampant, and that the cost-shifting externalization of care for injured workers is as poisonous as it is pervasive.

Perhaps most fundamentally, ProPublica, bolstered by the imprimatur and audience of NPR, has created a national conversation and awareness of the oppressed plight of injured workers with its feature The Demolition of Workers’ Compensation which exposed to the public domain the travesty and arbitrary injustice we slog through on a daily basis.

If we are uncritical we shall always find what we want. -Karl Popper

Continual, constructive self-assessment of our organizational efforts is indispensable to the accomplishment of our mission. Are we really doing the best job possible and are we succeeding to our complete potential?

Governors in the traditionally blue states of California and New York have signed away the long term financial security of millions of families of injured workers while Texas and Oklahoma have essentially jettisoned workers’ compensation benefits, allowing indifferent employers to Bail-Out of their responsibility to provide for the safety and security of working families. Further corporate front group Bail-Out initiatives are fermenting in the legislatures of Arkansas, Kansas, North Carolina, South Carolina, Tennessee and Wyoming.

In my view, the state workers’ compensation system is in its most dire situation in at least the last half-century. -Prof John F. Burton, Jr.

Professor Burton is clearly referencing only the perspective of the injured worker and not the immense wealth of the $85 billion insurance industry where insurance carriers now earn $6.20 in profits for every $100 of net premiums; and, private employers on average pay only 44 cents per hour for each employee to be provided with coverage.

Empirical evidence reliably demonstrates that each reduction in benefits to an injured workers’ family subsequent to “reform” has not translated into lower premiums for small business but primarily in greater profit for the self-insureds and the insurance industry. From 2007 to 2012, workers’ compensation benefits and costs per $100 of payroll were lower than at any time over the last three decades, while insurance company investment profits in 2011, 2012, and preliminarily for 2013, have topped 14% annually.

According to OSHA, workers’ compensation benefits now cover only 21% of workers’ compensation liabilities–shifting 79% of the true cost to others, including the injured workers’ family and taxpayers–while our firsthand knowledge demonstrates the inadequacy of current benefit levels and the injustice of the AMA Guides, ODG Treatment Guidelines, Primary Cause, Medical Formularies and the literal evaporation of effective vocational rehabilitation for those injured workers who have lost access to their prior occupation.

Therefore, my beloved brethren, be ye steadfast, unmovable, always abounding in the work of the Lord, for ye know that your labor is not in vain in the Lord. -1 Corinthians 15:58

I believe it will be the exponential participation of you, the existing member, which fosters our mission as much as the sheer addition of new members. The existential purpose of the organization must always be vigorous and exigent advocacy, not just growth and the collection plate. We must collect accomplishments, not only numbers.

Together we can do that, but we must have an active outreach program that communicates to the public, to the media and to state legislators the value of workers’ compensation and the cost of its failure. If business can focus-group a new Doritos flavor, I am confident we can use a similar approach identifying crux “reptile” talking points, plus distilling and building upon the points raised in the ProPublica series to focus our messaging.”


Texas Trench Collapse Results in $400k OSHA Fine and 16 Safety Violations

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

On July 22, 2015, Hassell Construction Co. was cited by OSHA for 16 safety violations (including 6 egregious willful violations) and given a whopping $423,900 fine. Hassell Construction Co. is a construction company based in Richmond, Texas with about 150 employees that construct water and sewer lines around Houston, Texas. The employer was given 15 business days to comply with each citation, request an informal conference with OSHA’s Houston South area director, or contest the citations and penalties before the OSHA Health Review Commission.

These citations were given after a trench that was 8 feet below the ground collapsed in February crushing an unsuspecting employee. Luckily, the worker was dug out by his co-workers using their bare hands. The minute the worker was freed from the trench, the trench collapsed a second time.

According to OSHA’s regional administrator in Dallas, John Hermanson, “Hassell Construction knew its trenches weren’t safe, but still put its workers in harm’s way.” Due to the fact that trench cave-ins such as the one in February are completely preventable OSHA has also placed the construction company in the Severe Violator Enforcement Program which often inspects employers and mandates follow-up inspections to ensure that they are complying with the law. In North Carolina, a similar incident allowed the employee to sue the employer directly and overcome the exclusivity provision of the North Carolina Workers’ Compensation Act. Woodson v. Rowland. 373 S.E.2d 674 (1988).

Read about the citations here:

Original Article 7/22/15 posted on


Workers’ Compensation Basics: What is a Workers’ Compensation Accident?

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

This blog post is the third in a series that examines the basics of workers’ compensation.

To be a covered workers’ compensation claim, an employee’s personal injury must be caused by an accident or occupational disease, but what does that mean?

The Nebraska Workers’ Compensation Act defines accident as: “an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. The claimant shall have a burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There shall be no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment. …” Nebraska Revised Statute 48-151 (2)

Of course, many workers’ compensation injuries are not as simple or as clear as a broken arm that was the result of a fall. Some injuries are caused by repetitive motion or cumulative trauma on the job. In those cases, the injuries are still considered workers’ compensation “accidents” under the definition above, even though the injuries did not truly occur “suddenly and violently” as required by the statute. 

As for an occupational disease, the Workers’ Compensation Act defines it as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and shall exclude all ordinary diseases of life to which the general public is exposed.” Nebraska Revised Statute 48-151 (3) Examples to think about would be mesothelioma for asbestos workers or black lung for coal miners.

In sum, pretty much any injury or illness that an employee receives from work can fit into the definition of “accident” under the Nebraska Workers’ Compensation Act. However, proving the injury is much more difficult and may require the help of a lawyer.

Read the previous blog posts in the series by clicking on these links: Workers’ Compensation Basics: Are You an Employee? and What is Workers’ Compensation?


Is a Pulmonary Embolism Compensable under Workers’ Compensation?

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

The short answer is yes, but it could be difficult to prove if it is not directly related to another workers’ compensation injury. In Nebraska, proving a pulmonary embolism and deep vein thrombosis (DVT) requires the same legal and medical causation tests as a heart attack or stroke (see Zissin v. Shanahan and Wingfield v. Hill Brothers Transportation, Inc.).

What that means is legal causation must be proved by showing that exertion or stress encountered during employment is greater than that experienced during the ordinary non-employment life. Then, it must also be proven by medical causation: i.e., show that the employment contributed in some material and substantial degree.

On the other hand, if someone develops DVT as a result of another injury caused by work, it would probably be much easier to meet the causation required to prove compensability. For example, let’s say a worker injures his knee during work and has surgery on that knee. Then, as a result of the surgery, a postoperative complication of DVT arises and eventually becomes a pulmonary embolism. In that scenario, the pulmonary embolism is clearly related to the work injury and clearly compensable.

Absent a prior injury, however, causation must be met by the standards stated above, which will be very fact intensive. An example of this scenario came up in the recent case, Wingfield v. Hill Brothers Transportation, Inc., 288 Neb. 174. In that case, a truck driver for 35 years asserted that his deep vein thrombosis and pulmonary embolism was from sitting while driving a truck so long. The workers’ compensation court dismissed the cases, holding that the truck driver did not adequately prove legal and medical causation.

This case illustrates how difficult the causation standard is for pulmonary embolism cases that are not directly linked to a work injury. These types of cases will almost certainly require the assistance of a lawyer. 


What is Workers’ Compensation?

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

This is the first installment of a series that will educate workers and their families about injury, disease and death resulting from work. The most basic question is: What is workers’ compensation?

Workers’ compensation is a legal system established in all 50 states, Washington, D.C., and for federal employees. Workers’ compensation laws began in the United States in 1912. The laws are different in each state, but the basics of the law are quite similar in all states.

If a worker is injured, contracts a disease or dies as a result of work activities, all of the medical and burial expenses are to be paid by the employer. The employer is also responsible to pay for lost wages, physical disability, and mental disability. Workers’ compensation does not pay for pain and suffering and is generally limited in duration of payments, although some states pay lifetime benefits.

The balance of this series will go through the basic steps of how to obtain workers’ compensation benefit. The goal is to inform, which helps victims of workplace injury, disease or death receive proper compensation.