Category Archives: Workers’ Comp’ Basics

Consider These Car Accident Tips to Avoid Missteps

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No one ever intentionally plans to get in a car accident or get hurt at work. But unfortunately bad things sometimes happen in life. And a person’s response to those situations can sometimes affect what happens from a legal perspective. Also remember that if you travel as part of your job, or if traveling is your job, like in the case of truck drivers, vehicle accidents are often covered under workers’ compensation. Here are some recommended tips to avoid potential legal pitfalls later.

What to do when you’ve been in a car accident:

  1. Call the police (or 911 if necessary).
  2. Exchange information with the other driver (name, contact info, driver’s license number, license plate, auto insurance).
  3. Obtain witnesses: Get names and contact info for any witnesses even if the police have already spoken to that person. If possible, obtain written statements from willing witnesses.
  4. Gather evidence: Take pictures or videos of the accident scene, the damage to all vehicles, and any noticeable injuries.
  5. Write notes of the date, time, location, weather, how the accident happened, and any other details that you can remember (speed, traffic signals, turn signals, headlights, brake lights, cell phone usage, etc.).
  6. Go to your doctor: make sure to tell your doctor how you were injured, and be sure to discuss all injuries, even ones that seem insignificant at that time.
  7. Contact your insurance company, and report the accident. Your auto insurance will likely pay for at least some of your medical bills.
  8. Do not give a recorded statement without contacting a lawyer.

You should talk to a lawyer when you’ve been in a car accident IF:

  1. You don’t know what kind of compensation/money you are entitled to
  2. The insurance company is asking you for a recorded statement
  3. The insurance company denies your claim
  4. There is a question of which driver is at fault
  5. The police report is incomplete or inaccurate
  6. The other driver does not have insurance or does not have enough insurance coverage
  7. You have unpaid medical bills
  8. You have permanent disability or constant pain
  9. There are complicated legal or medical issues
  10. You have missed more than a few days of work

Do your best to drive defensively, and safe travels.

Report Your Injury Right Away

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Truckers especially need to pay attention to this blog post. Most states require you to provide notice of your work injury to your employer as soon as is practicable. Failing to do so might prevent you from getting workers’ compensation benefits.

Because truckers are always on the go, sometimes they may not remember to report their injuries right away. Instead, maybe the trucker will simply finish the route and decide to get checked out later, completely forgetting to inform the employer. This can become a problem later and potentially could give your employer a reason to deny paying work comp benefits or paying for treatment for your work injury. Unfortunately, this is a fairly common mistake, as pointed out on one of the firm’s websites, www.truckerlawyers.com.

The moral of the story is if you’re hurt, tell your employer immediately. Communicate via your Qualcomm, call in, radio, email, or do whatever it takes, even if you have to call from the doctor’s office. Even if your injury seems insignificant at first, you’ll still want to give your employer notice. You’ll be better off in the long run.

2013: Centennial Year for Workers’ Compensation in Nebraska

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100 Years of Nebraska Workers’ Compensation

The year 2013 will mark 100 years of workers’ compensation law in Nebraska. This state was a leader in adopting the new protections and benefits for workers. The first workers’ compensation laws in the United States were enacted two years earlier, and few states had followed by 1913. Workers’ compensation laws were hailed as social progress, if not outright human-rights triumphs. Nebraska was a leader in protecting workers’ rights. Much has changed since then.

 

The current workplace is not the workplace that existed 100 years ago. The jobs then were much more physically demanding and dangerous. The injuries and diseases are not the same. Repetitive-motion injury was not contemplated or compensated. Cancer from industrial solvents was not contemplated or compensated. Mental disease was stigmatized by society and essentially not compensated. Medical practice was less specialized, and treatment options were much more limited.

 

Interested parties have long been working to keep the law in sync with the times. The law has changed from time to time, but some of the bedrock concepts, such as requiring “accident” have resulted in some rules that lawyers call legal fictions, for instance. Medical benefits that experts consider the most basic protection are the most costly part of the system, and cost increases are an area of constant concerns.

 

Competing legislation is presented each year with incremental changes resulting. The last major revisions happened 20 years ago. The annual arguments sometimes get heated, but the law seems to advance. The big picture is something we can be proud of.

 

Nebraska law has the highest rating of any state under presidential-commission guidelines established in 1972. Premiums and costs are in the mid-range of the states, as are worker benefits. Nebraska is rated as the 2nd-best state legal climate by the U.S. Chamber of Commerce. Nebraska is one of few states that has robust vocational rehabilitation benefits for injured workers. Hopefully we can continue working together to maintain and improve Nebraska’s workers’ compensation law in ways that benefit all of the competing interests.

 

Bottom-line conclusion: Nebraska law is doing well for a centenarian. Let’s keep cooperating to ensure progress.

How Apportionment Relates to a New Workers’ Compensation Claim

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multiple injuriesCan I get workers’ compensation benefits for an injury even though I had a past workers’ compensation claim?

The simple answer is yes. In nearly all instances, you would be entitled to full benefits for your new injury regardless of whether you have already experience a workers’ compensation injury in the past.

Apportionment:

“Apportion” or “Apportionment” means that your employer is allowed to assign disability to a previous workers’ compensation injury to the same body part, which reduces the money benefits for your current injury. However, only under certain situations is your employer allowed to “apportion” benefits from your current injury to a past injury.

Specifically, in order to “apportion” your current injury to a previous injury (thereby reducing money benefits) there needs to have been a loss-of-earning-capacity evaluation for your previous injury. Often, this is not present. Even in rare situations where there was a previous loss-of-earning-capacity evaluation attributable to a previous workers’ compensation injury, your employer must still show Continue reading

Can I Collect Social Security, A Pension AND Workers’ Comp?

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Today’s post comes from guest author Matthew Funk from Pasternack Tilker Ziegler Walsh Stanton & Romano. Different benefits like SSD, a pension, and workers’ compensation can be combined, but care needs to be taken when approaching that situation. Working with a lawyer who knows the details of how these potential benefits interact means peace of mind that a client will benefit from available resources without potential troubles.

QUESTION: IF I AM GETTING SOCIAL SECURITY DISABILITY (SSD) AS WELL AS A PENSION DOES THAT MEAN I CANNOT GET WORKERS’ COMPENSATION AS WELL?

ANSWER: YOU CAN GET STILL GET WORKERS’ COMPENSATION WHEN YOU ARE RECEIVING A PENSION AND SSD.

At 55, Joe was a walking museum of every accident he had ever had in his 30 years of working the job. That last accident put him out of work for almost two years. Luckily, he filed all the paperwork, submitted all the forms, crossed all his ‘Ts’ and received Social Security Disability (SSD).

But after three decades of hard work, Joe had had enough and so he started the paperwork to retire. But he was worried. He had planned on applying for Workers’ Compensation, but he wasn’t sure he’d could since he was already on SSD and about to receive his pension. What should he do?

File, Joe! File!! The combination of Workers’ Compensation, Social Security Disability and a pension is called the Trifecta, a Triple Crown of benefits, so to speak. Continue reading

Workers’ Comp Q&A: Does going back to work ruin my case?

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Today’s post comes from New York colleague Todd Jones of Pasternack Tilker Ziegler Walsh Stanton & Romano. Going back to work during a workers’ compensation claim can get complicated, so be sure to include your attorney in the discussion. This post includes a useful checklist for returning to work and reminds folks to listen to their bodies, too.

QUESTION: DOES GOING BACK TO WORK RUIN MY CASE?

ANSWER: Not at all!

This question comes up a lot in Workers’ Compensation cases. When someone is injured they have to balance their personal and professional obligations while including their injury as a new variable.

This is completely understandable. Oftentimes people want to try to get back to work but are not sure if their body will hold up. This uncertainty can cast a shadow over everything a person has to consider when they have a work injury.

First and foremost you should speak to your doctor and find out what you are physically capable of. While your injury may be improving, you may not be able to return at 100%.

If your doctor clears you to return to work Continue reading

Work Comp Claim Denied Because I “Violated a Safety Rule”

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safety rules

If you violate a safety rule you may still be eligible for workers’ compensation benefits.

If your employer has denied your workers’ compensation injury based on the fact that you “violated a safety rule” it is likely that you can still recover the benefits you are entitled to for your work injury.

Some states limit or completely bar recovery if an employee is found to have violated a safety rule when he or she was injured on the job. In Nebraska, however, the violation of a safety rule is not automatically deemed “willful negligence” as a matter of law, which would bar any recovery for workers’ compensation benefits. Instead, the Nebraska courts rely on five factors in determining whether the safety-rule violation would bar workers’ compensation benefits for injured workers. By analyzing these five factors, the court will determine if the safety violation rises to the level of “willful negligence,” which means that the employer must prove “a deliberate act knowingly done or at least such conduct as evidences a reckless indifference to the employee’s own safety”.

These factors were adopted by Nebraska courts when Roger Moore, from our law firm, successfully argued that his injured worker-client was entitled to workers’ compensation benefits even though the worker actually violated a company safety rule when he was injured on the job. See Guico v. Excel 260 Neb. 712, 619 N.W.2d 470 (2000). The Supreme Court sided with Roger Moore in determining his client was entitled to workers’ compensation benefits based on the following factors:

  1. Whether an employer has a reasonable rule designed to protect the health and safety of the employee,
  2. Whether the employee has actual notice of the rule,
  3. Whether the employee has an understanding of the danger involved in the violation of the rule,
  4. Whether the rule is kept alive by bona fide enforcement by the employer, and
  5. Whether the employee has a bona fide excuse for the rule violation.

Of course, oftentimes your employer cannot meet these factors, and your claim should not have been denied. For example, just because your employer gives you handbook one day with safety rules you are to follow (factor 1 above) does not mean it will be able to automatically deny your workers’ compensation claim. In fact, it is highly likely that your employer will have difficulty establishing the four other factors that follow.

In sum, it may take some work and some investigation, but if your workers’ comp claim has been denied for a violation of a safety rule, chances are good that you still may be able to recover benefits for your injury.

There IS a Statute of Limitations on Workers’ Compensation Claims

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The term “statute of limitations” means that there is a certain amount of time to bring a legal claim. If that time runs out, the claim can be barred from ever being heard, no matter how legitimate the claim may be. All workers’ compensation claims in any state have some sort of time limitation in which to file a lawsuit. The primary reason for the statute of limitations is to provide some stability so that cases are filed in a timely manner. The longer a case takes before going to trial, the more difficulty a party is likely to experience in terms of locating witnesses, documents, or electronic records.

In Nebraska, the statute of limitations is two years.

In Nebraska, the statute of limitations is two years. More specifically, you must file a lawsuit (or Petition) in the Nebraska Workers Compensation Court within two years of the date of the accident or the date of the last benefit paid (disability indemnity payments, or medical bills payments), whichever is later.

Of course, if any benefits have been paid, that will be the later date. However, when trying to calculate this date, you need to look at the date a check is issued concerning the last disability payment or medical payment made. You cannot assume that simply because you went to your workers’ compensation doctor that the bill was paid by the workers’ compensation carrier.

In Iowa, the time limit in which to file a workers’ compensation claim is two-fold as well. If no weekly disability payments have been made to the injured worker, a worker must file within two years of the date of injury.

In Iowa, the time limit in which to file a workers’ compensation claim is two-fold as well. If no weekly disability payments have been made to the injured worker, a worker must file within two years of the date of injury. If weekly disability benefits have been paid to an injured worker, then the time limit in which to file a claim is three years from the date of the last payment. Unlike Nebraska, medical payments do not count as weekly benefits.

In either state, when it comes to the statute of limitations, it’s better to be safe than sorry. If it’s getting even remotely close to the appropriate time limitation from the date of your injury, you would be best served by contacting a lawyer to determine whether a lawsuit needs to be filed immediately to prevent your claim from being barred forever. Once you miss this deadline, your case is over, no matter how legitimate your injury is.