The Nomberg Law Firm

Friday, October 25, 2019

WHY YOU WILL NOT RETIRE OFF YOUR ALABAMA WORK COMP CASE

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

photo of an injured man in a wheelchair — Patrick T. Fallon for ProPublica

It is normal to expect you should be adequately compensated after being injured on the job and in fact, you really should be adequately compensated. But the reality is that Alabama’s workers’ compensation laws¹ are antiquated (“modernized” in 1992) and not favorable to injured employees. That is why a lot of employees who go to an attorney after being injured on the job find themselves feeling very let down when they discover the actual compensation they will end up receiving and how long the process can take. A problem that leads to this result is how often most people are misled by advertisements seen on billboards and television commercials promising millions of dollars in compensation. It is unrealistic and does not align with the current Alabama workers’ compensation laws.

Since 1985, a scheduled member injury such as a finger, hand or foot, pursuant to Alabama Code §25-5-68, caps recovery of permanent partial disability benefits to injured workers to a maximum of $220 per week. This is the lowest amount in the country.² Under Alabama Code §25-5-57(a)(3)g., temporary total disability benefits are two-thirds of a workers’ average weekly wage, but cannot exceed a maximum amount set by law each year. As of July 1, 2019, the maximum benefit is $892 per week. This cap only kicks in if the annual salary is around $65,000 or more. In the past twenty years, several attempts in our legislature to change the law and update these figures have failed.

Propublica.org published an interactive article³ that shows the large discrepancies between what injured employees can recover in each state for various body parts they hurt on the job. Sadly, it is a great demonstration of how outdated and behind Alabama’s workers’ compensation laws are, given that each injured body part is worth significantly less compared to the majority of other states in the United States. For example, in Alabama, a fully injured arm can be worth up to $48,000, but that same injury in Georgia may be worth up 10-20x (or more) that amount.

This is happening, in part, because Alabama’s laws have not been modernized since the early 1990s when the cost of living was much less and $220 was two-thirds of the Alabamian workers’ average weekly wage. That arm injury mentioned above is worth the same in 1994 as it is twenty-five years later in 2019. (Reread that sentence!) Does gas, milk or groceries cost the same now as it did in 1994? Not even close. The cost of living rises annually, but not the value of injuries to Alabama employees.

Injured workers in Alabama are not the only employees affected. Around the country, workers’ compensation laws have been slashed and dismantled over the last decade. ⁴ This is being caused by big businesses and insurance companies claiming that costs are out of control, while they are disguising this dismantling of workers’ compensation benefits as “reform” due to the “high costs”. In fact, this has been proven to be false – employers have pushed off these costs to American taxpayers. This was discovered during an investigation conducted by ProPublica and the NPR,⁵ which among other things also discovered:

Since 2003, legislation in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them. Florida has cut benefits to its most severely disabled workers by 65% since 1994.
Where a worker gets hurt matters. Because each state has developed its own system, an amputated arm can literally be worth two to ten times as much on one side of a state line than the other. Another stark example how far behind we are in Alabama… the maximum compensation for the loss of an eye is $27,280, but $261,525 in Pennsylvania. Wow! Why would people want to work in Alabama where the injury benefits are so far behind?
Many states have not only shrunk the payments to injured workers, but they have also cut them off after an arbitrary time limit — even if workers have not fully recovered. One not so unusual example was after John Coffell seriously hurt his back at an Oklahoma tire plant, his wages dropped so dramatically that he and his family were evicted from their home.⁶ His situation is far from uncommon. Sadly, we have dealt with that situation with our clients many, many times.

Employers and insurers increasingly control medical decisions, such as whether an injured worker needs surgery. In 37 states (including Alabama), workers cannot pick their own doctor or are restricted to a list provided by their employers. Additionally, utilization review (a health insurance company’s opportunity to deny a request for medical treatment) further slows down the request for much needed medical care.

In California and many other states, insurers reopen old cases and deny medical care (like utilization review) based on the opinions of doctors who never see the patient and don’t even have to be licensed in the state. One really bad situation of this was involving Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours. ⁷

The laws for employees in workers’ compensation cases in some states in America, including Alabama, are completely unacceptable and need drastic changes. Given these findings, Alabama workers’ compensation laws need a different type of “reform” than what the big corporations and insurance companies have in mind. At the very least, the laws need a reformation that allows adequate compensation for the injured employee. They need to be modernized, based on the current economy and ever-evolving societal needs for injured workers. We truly hope that these laws in our State are brought into alignment with other states that better protect their workers.

In the meantime, as we have since 1967, we will continue to protect the legal rights of our clients – those who are hurt on the job while working for Alabama employers. If you have been injured on the job and want to learn your rights, please consider contacting the Nomberg Law Firm. Our office number is 205-930-6900 and website www.NombergLaw.com. Our office is located in Birmingham, Alabama. We handle cases throughout our great State.

Sources:
[1]https://law.justia.com/codes/alabama/2006/19360/123309.html
[2]https://www.propublica.org/article/alabama-bill-would-increase-workers-comp-benefits-for-amputees
[3]https://www.propublica.org/article/how-much-is-your-arm-worth-depends-where-you-work
[4]https://www.propublica.org/article/the-demolition-of-workers-compensation
[5]https://www.npr.org/series/394891172/insult-to-injury-americas- vanishing-worker-protections
[6]https://www.propublica.org/article/injured-worker-propublica-npr- story-testifies-before-illinois-legislature
[7]https://www.propublica.org/article/workers-compensation-injured-workers-share-stories-of-harm

Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/why-will-you-not-retire-off-your-alabama-work-comp-case/

Tuesday, October 8, 2019

EMPLOYEE OR INDEPENDENT CONTRACTOR

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

photo of big rig trucks

[1]

Lately it seems there has been a surge of litigation and uproar surrounding workers and their relationship to the companies that procure their services. Especially in the truck driving industry. While a contentious relationship with the boss is a tale as old as time, the current facet of this controversy is catching the attention of workers and creating buzz in courts around the country. The new source is classification of workers. The companies want, and indeed benefit from, calling those who render services “independent contractors.” Meanwhile, those same workers wish to be deemed “employees” and receive all the benefits and protections that accompany such designation. We all may be familiar with the terminology that dominates any discussion of the issue, but what do we really know about the mechanics behind the classification?

When litigation ensues and courts are tasked with determining the status of an employee, multiple factors are taken into account and reviewed on a case-by-case basis. To name a few, a judge will look at the employer’s ability to control the execution of services by the worker. Whether the company actually uses this right bears no weight on applying the analysis. If a company retains the ability to set a worker’s hours, establish routes, determine the loads carried (with no chance for the driver to decline), require safety meetings and standards for drivers, and has a set uniform are typical signs of an employee-employer relationship. Also taken into consideration is the contract executed between the driver and corporation, the driver’s ability to contract his services out to other companies, the way the driver is paid, and the driver’s autonomy in deciding how to handle his truck and various equipment. How these factors relate and assume weight is a gray area still being explored by developing case law.[2]

In Alabama specifically, these factors are nearly synonymous with the test that will be applied to each case. The test exactly stated is “whether the other person has reserved the right of control over the means and method by which the person’s work will be performed, whether or not the right of control is actually exercised.”[3] Again, the ambiguity continues in the state cases until the individual facts are reviewed. However, the factors enumerated are still the best indicator of where a claim stands. If a worker has to abide by strict standards imposed by a company and loses his own ability to direct his work, basically forfeiting his independence, it stands to reason that the classification as “independent contractor” is lost as well.

If you have questions about your classification as a driver or if you are injured while driving or riding, please call The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900. For further information, please visit our website: Nomberglaw.com.

[1] http://www.personalinjuryloans.net/Big-Rig-Semi-Trailer-Truck-Presettlement-Loans

[2] https://www.colonialtruckinginsurance.com/employee-independent-contractor/

[3] Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., 17 So. 3d 200, 213 (Ala. 2009).

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/employee-or-independent-contractor/

Tuesday, September 24, 2019

EMPLOYEES AND THE GIG ECONOMY

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

illustration showing uber and lyft cars in head-on collision For many of us we hear “gig economy” and think it’s another millennial hashtag with absolutely zero meaning in our everyday life. But really, the emergence of the gig economy has a direct impact on us all. Put simply, the “gig economy” is a new way of saying independent contract or part-time work, and over 55 million people are working this way now.[1] That number is only expected to grow as technology and time progresses. So this raises a new question: if corporations are switching to contract labor as opposed to employed workers, what happens to benefits like Social Security, workers’ compensation, and other benefits that come with being an employee?[2]

Companies like Lyft and Uber use the “gig” business model to contract out its work, and thereby avoid paying claims like expense reimbursement to drivers, minimum wage standards and overtime pay, and taxes to the IRS. This triggered a slew of lawsuits by drivers who want to be classified as employees. Lyft has already settled some of these suits to the tune of nearly $29 million.[3] Meanwhile Uber has suggested it is willing to pay up to $170 million to quiet the riot of lawsuits barraging it.[4]

The central idea to these lawsuits is that the companies want to find a new way to classify employees in an already heavily regulated area and the drivers believe their rightful classification is as an employee.[5] So far, the app-based companies are in the lead at the federal scale. Peter Robb, in his office as general counsel for the National Labor Relations Board, declared in a memo in May that Uber drivers are independent contractors and not employees because they “set their hours, own their cars and are free to work for the companies’ competitors.”[6] This means drivers are unable to unionize and obtain the legal protection unions provide for workers complaining about working conditions.[7]

California’s response to the upheaval has been what is known as Assembly Bill 5. This bill adds a new element in California to the federal test to determine employment status. The new element being that the company wanting to classify the workers as independent contractors has to show the work performed is outside the usual course of business for the entity.[8] While Uber has responded with confidence that it will still be able to pass the test at the state level, those outside the corporation are not so sure. This confidence will be tested on January 1, 2020 because Governor Newsom of California signed the bill and it is set to take effect on that day.[9] The significance of California making this law and not the federal government is that the corporations are based within the state; so the state law controls what the companies can and can’t do. However, it will still take time and litigation to prove the effects this new law will have on the gig companies, whether the companies will move to avoid an unfavorable outcome or continue to gain clearance to operate as usual. Only time, and more lawyers, will tell.

If you have questions about the gig economy, your classification as a driver or if you are injured driving/riding in an Uber/Lyft, please call The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900. For further information, please visit our website: Nomberglaw.com.

[1] https://www.forbes.com/sites/quora/2019/01/08/what-are-the-pros-and-cons-of-the-gig-economy/#7bf8ede71388

[2] https://www.whateverison.com/here-are-answers-to-every-uber-lyft-customers-questions/

[3] https://techcrunch.com/2019/03/01/lyft-lays-out-financial-risks-associated-with-reclassifying-drivers/

[4] https://www.reuters.com/article/us-uber-contractors/uber-drivers-are-contractors-not-employees-us-labor-agency-says-idUSKCN1SK2FY

[5] https://www.inc.com/minda-zetlin/uber-california-ab5-tony-west-employees-independent-contractors-lawsuits.html

[6] https://www.reuters.com/article/us-uber-contractors/uber-drivers-are-contractors-not-employees-us-labor-agency-says-idUSKCN1SK2FY

[7] https://www.reuters.com/article/us-uber-contractors/uber-drivers-are-contractors-not-employees-us-labor-agency-says-idUSKCN1SK2FY

[8] https://www.inc.com/minda-zetlin/uber-california-ab5-tony-west-employees-independent-contractors-lawsuits.html

[9] https://www.latimes.com/california/story/2019-09-18/gavin-newsom-signs-ab5-employees0independent-contractors-california

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/employees-and-the-gig-economy/

Thursday, September 12, 2019

Hurt and Hunted

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

photo of a surveillance camera and someone walking by it

[1]

If you have been injured on the job and filed a workers’ compensation claim, it is natural to feel as though a target has been placed on your back. The constant barrage of forms to be completed and medical examinations to be attended can only increase the feeling of living under a microscope. But there might just be another eye on you that you did not expect – your employer and the insurance company.

Employers more and more are utilizing every technique possible to avoid paying workers’ compensation claims. It is common to hear stories of employees claiming workers’ compensation benefits being approached by strangers for the sole purpose of uncovering any detail that can destroy the employee’s claim for work comp benefits. These strangers are hired to unearth any point of inconsistency in your story that will lead to your employer weaseling its way out of paying you the benefits you need.

Alabama courts have made plain their stance on employers and their insurance carriers conducting surveillance. Put bluntly, the law is not on your side. Your employer can watch you in public and from public areas so long as they do not trespass. (We have previously discussed this: http://bit.ly/2k3RAf0). Courts also allow into evidence surveillance tapes against you to refute the claim you try to bring. In one case, video evidence was provided at trial showing the worker walking around without his leg brace or any visible limp – this crushed his credibility in front of the judge when he later argued at trial he had a serious, debilitating leg injury.[2]

The best way to tackle the surveillance that can seem like a giant obstacle is to be aware of the game. Just as the saying goes, knowledge is power. Once you know that your employer is out to undermine your case, you can switch to an offensive position and head them off at the pass. Here are some practical ways to shore up your case and end the dispute with the benefits you deserve:

Video surveillance can be used to show you are not disabled. If you claim an injury in your arm, for example, do not tough out a difficult situation in public by using that arm. Maintain the level of activity your injury has limited you to and ask for help instead.
Surveillance can also be a way to show you are not as injured as you claim and your injury is exaggerated. The only way to avoid this is to be honest about the state of your injury when making the claim. Do not “sweeten the deal” by adding unnecessary details that aren’t completely truthful.
Another tactic is to show video of you doing more than the doctor’s restrictions to prove your injury is false. Listen to your doctor and stay well within the limits imposed based on your injury and the doctor’s consultation.
The last method used against you is to attack your credibility. Honesty is the best way to avoid losing money because you did not want that stranger that asked how you broke your arm in the grocery store to know your private business. Approach every situation with caution, and, as always, consult with legal counsel before making any statements about your health to employers and insurance providers.[3]

Basically, use common sense! Remember your treating physician’s restrictions and limitations. Do not do something you should not be doing!

If you or a family member have a workplace accident and need legal representation, please consider contacting The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900. For further information, please visit our website: Nomberglaw.com.

[1] https://finance.yahoo.com/news/tech-companies-scope-africa-surveillance-sector-145132198.html?utm=newsbreak.

[2] Dills v. Wal-Mart Stores, Inc., 777 So. 2d 160 (Ala. Civ. App. 2000).

[3] https://www.alabamalitigationreview.com/2015/07/articles/workers-compensation/surveillance/.

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/hurt-and-hunted/

Thursday, August 29, 2019

HOLIDAY WEEKEND SURVIVAL TIPS & TRICKS

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

people jumping off dock into a lake Labor Day Holiday Weekend is finally upon us. It’s the last hoorah of summer. The weekend signals a farewell to pool parties, trips to the lake and bathing in the sun. Over the upcoming weeks we will say hello to sweater weather, pumpkin spice and (hopefully!) cooler temperatures. So as you head into the long weekend, please keep in mind the potential for danger so you can avoid any delay to your fun.[1]

The National Highway Safety Administration (NHSA) marks Labor Day weekend as a time for increased vigilance for law enforcement officers on the roads.[2] While for some this may merely mean to tap the breaks on their lead foot, for everyone it warns of the potential for drunk drivers on the road and the accidents that could happen because of them. During the 2017 holiday weekend, 376 people died in accidents due to drunk drivers.[3] So as you and your loved ones pack into the car to travel, the NHSA has some helpful tips to keep safe on the roads.

Drinking and driving is never okay. Even after a single alcoholic beverage. Plan ahead for a designated sober driver for when the party ends.
No matter the source of impairment, the new slogan by the NHSA shows that driving high still gets a DUI. So again, make a plan and stick to your designated driver position.
If you or a passenger think another car on the road might be driven by an impaired driver, pull over and report the vehicle to 911.
If you notice someone else is attempting to leave in their own car while impaired, take action and make a plan for them to get home safely. You never know who might be saved down the road.

If your weekend involves activities around the water, like boating, make sure your children are properly supervised at all times. Even if a lifeguard is on duty, a second set of eyes on your little ones can make the difference.[4] Never let children who don’t know how to swim be near the water alone. A floatation device is no fool-proof method for avoiding disaster. But in case of disaster, learn how to perform CPR on both kids and adults. A good defense is the best offense when it comes to water safety.

Labor Day weekend is your last chance at summer activities as the year rushes on. Let it be a weekend of fun for you and your family by knowing the potential for hazards and planning to avoid them before it can pose a threat to your holiday.

If you find yourself or a loved one happen to be involved in an accident during this holiday weekend and need legal representation, please consider contacting The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900. For further information, please visit our website: Nomberglaw.com.

[1] https://www.tesh.com/articles/protect-yourself-if-you-swim-in-a-lake-or-river/

[2] https://www.nhtsa.gov/drunk-driving/drive-sober-or-get-pulled-over

[3] Id.

[4] https://www.poolsafely.gov/parents/safety-tips/

Photo credit: http://perrylocal.org/whipple/2016/08/08/bus-safety-for-the-2016-2017-school-year/

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/holiday-weekend-survival-tips-and-tricks/

Wednesday, August 21, 2019

A SAFER RIDE THIS YEAR

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

bus safety custom graphic Back to school season is upon us once again. Backpacks are being filled with school supplies and new teacher orientations attended. With the new school year beginning, it’s important to prepare beyond the ordinary shopping list.

According to the Alabama State Department of Education, 49.1% of students take the bus to school each day.[1] To ensure the well-being of those students, the transportation department made safety improvements over the summer break to the buses shuttling kids back and forth each day.[2] Such protective measures included the installment of automatic brakes that engage when a bus driver gets too close to a car in front and driver assist when the bus is cruising on wet roads.[3]

Even with the added precautions taken by the department of transportation of adding safety features within the bus itself, the safety of the student in your home is still your responsibility. For those students that ride the bus, steps can be taken on your own to make the trip safer.

Arrive at the bus stop at least five minutes before the bus is scheduled to arrive.
When waiting at the bus stop, stay out of the road and keep your child from letting their play get out of hand.
Wait for the bus to stop completely before approaching the bus to board.
Instruct your child to remain seated on the bus and keep their arms and legs inside the windows at all times.
Convey the importance of not distracting the driver by shouting or playing to your bus rider.
Show your child the bus’s blind spot – which is anywhere within ten feet of the front of the bus – and instruct them not to walk within it.
Teach your child to only cross the street and designated crosswalks and to obey traffic signals and signs.
When walking home from the bus stop, tell your child to take the same route each day, never to use a short cut, and to avoid strangers by keeping their distance from anyone they don’t know.
Encourage them to make friends at their bus stop so they can walk home from the stop together each day.[4]

Getting to school should never be a source of injury or anxiety. By talking with your child about the potential dangers and the precautions they should take to keep safety within their control, you can be sure that the only worry you’ll have is relearning math to help your student finish their homework this year. For more information, please click here: http://bit.ly/2Nr8fpn

If you find yourself or a loved one having been injured from a bus incident, please consider contacting The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900. For further information, please visit our website: Nomberglaw.com.

[1] https://www.alsde.edu/sec/pt/Pages/factsandstatistics-all.aspx?navtext=Facts%20%20and%20Statistics.#.

[2] https://www.wbrc.com/2019/04/30/improving-school-bus-safety-with-new-technologies/.

[3] Id.

[4] https://www.adt.com/resources/back-to-school-safety.

Photo credit: http://perrylocal.org/whipple/2016/08/08/bus-safety-for-the-2016-2017-school-year/

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/school-bus-safety/