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.
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.
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:
Call the police (or 911 if necessary).
Exchange information with the other driver (name, contact info, driver’s license number, license plate, auto insurance).
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.
Gather evidence: Take pictures or videos of the accident scene, the damage to all vehicles, and any noticeable injuries.
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.).
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.
Contact your insurance company, and report the accident. Your auto insurance will likely pay for at least some of your medical bills.
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:
You don’t know what kind of compensation/money you are entitled to
The insurance company is asking you for a recorded statement
The insurance company denies your claim
There is a question of which driver is at fault
The police report is incomplete or inaccurate
The other driver does not have insurance or does not have enough insurance coverage
You have unpaid medical bills
You have permanent disability or constant pain
There are complicated legal or medical issues
You have missed more than a few days of work
Do your best to drive defensively, and safe travels.
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.
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.
Can 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.
“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 →
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 →
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%.