Employers are taking advantage of a gap in Nebraska case law to coerce injury employees into coercive light duty assignments

As temperatures and wind-chills plummeted, the familiar sounds of holiday bells rung out over parts of Lincoln.

But the tradition of holiday bell ringing to solicit donations for the Salvation Army has been marred by insurers/employers who see bell-ringing and other volunteer work as ways to force injured workers back to work.

These arrangements usually involve the employers paying their injured worker a salary, instead of temporary total disability, to work at or for a non-profit. This arrangement creates all sorts of problems for employees such as who they report to for work? There may also be language barriers when non-English-speakers injured at larger employers work for small non-profits without interpreters.

So why can employers get a way with just farming out their injured employees for volunteer assignments. After all, the Nebraska Workers Compensation Court regulates vocational rehabilitation programs through Neb. Rev. Stat. 48-162.01.

48-162.01 uses what amounts to a check list when it comes to vocational rehabilitation for workers. On top of the list is an employee going back to their old job to the bottom of the list – or the final step – is enrollment in a training program. Somewhere in the middle are new job with the same employer or new job with new employer.

Voluntold charity work is arguably neither a new job with a new employer or a new job with the same employer. The employer is still paying the employee, but they are working for someone else. If this was a permanent placement, it would be problematic to say the least.

Green v. Driver’s Management: Creating the legal gap for voluntold light duty?

I believe employers are exploiting a gap in Nebraska workers’ compensation law. Nebraska case law in Green v. Driver’s Management holds that an employee can’t get vocational benefits without permanent impairment or permanent restrictions. Arguably, if an employee is not at MMI, then the vocational rehabilitation rules don’t apply.

So how to employee’s answer those arguments.  First, the court will approve temporary loss of earning power evaluations. These involve vocational counselors as described by the 48-162.01 and court rules.  This practice is justified by the proposition that disability, whether it is temporary or permanent, can still determined by loss of earning power.

Secondly, the Green case holds that vocational benefits aren’t awardable without restrictions or impairments. If an injured worker is getting shifted into a voluntold job, this usually means they have some restrictions. If you concede that disability can mean the same thing whether it is permanent or temporary, then an employer shouldn’t be able to get around the vocational rehabilitation statute just because an employee is not at MMI?