Tag Archives: average weekly wage

Maximum benefit rate for workers comp. benefits in Nebraska increases unprecedented 7.5 percent for 2022

Posted on December 20, 2021 by Jon Rehm

Wages in Nebraska increased by 7.5 percent in 2021 according to the Nebraska Department of Labor. This is the largest percent increase since at least 1996. How will this impact workers compensation in Nebraska?

Increase in maximum benefit amount

The maximum benefit rate for workers compensation benefits in Nebraska increased from $914 to $983. Since 1996 the workers compensation maximum benefit rate has been pegged to the increase in the state average weekly wage.

Typically statewide average wages increase by 3-4 percent per year. The increase in 2021 is unprecedented and is consistent with labor shortages related to the so-called “Great Resignation” and the COVID-19 pandemic.

Under the new maximum benefit rate, workers earning more than $76, 674 per year without overtime will be under compensated for their work injury.

No increase in minimum benefit

The minimum benefit under for injured workers in Nebraska remained $49. That amount doesn’t increase along with the state average weekly wage. If it had, the minimum rate would be $117.76

Part-time workers should note that permanent disability benefits and eligibility for retraining are based on a 40-hour work week.

Wage inflation and loss of earning power

Earlier this year, I wrote about a Mississippi case, Chambers v. Howard Industries, that allowed courts to take inflation into account when calculating loss of earning power. Mississippi law includes a presumption of no loss of earning if an employee is back to work at the same wage. The court in Chambers allowed plaintiffs to use wage inflation to rebut that presumption.

In my experience wage inflation comes into play with overuse injuries involving multiple body parts that take years to treat. Some back surgeries can have long recovery times. Even with wage inflation of 10 percent, I’ve been able to get counselors to increase loss of earning power evaluations. I would expect greater increases if I could use a 15-20 percent increase over a multi-year period.

Some defense lawyers strongly objected to the use of wage inflation in loss of earning power evaluations. After all benefits are capped by earnings at and before the time of injury.

But using wage inflation doesn’t increase the benefit rate, it just increases the percent of the potential benefit for the worker. I would argue the proposition that loss of earning power evaluations should accurately reflect earning power weigh in favor of using wage inflation.

How to get paid regular wages for missing work due to a medical visit in a workers’ compensation case

Posted on February 24, 2020 by Jon Rehm

Can an injured worker claim their regular pay if they go to a medical appointment as part of their workers compensation claim? The answer is yes. But like most legal questions there are always qualifications.

Why you can get paid wages for workers’ compensation medical visits
First, per the Fair Labor Standards Act (FLSA) and federal regulation 29 CFR 785.43, getting paid for time spent going to a doctor applies when the employee seeks treatment on site or during regular work hours. An employee might have a harder time claiming pay if they are forced to seek medical treatment during non-work hours. But I believe it would be a close and interesting legal issue if time spent going to employer-compelled medical treatment during non-work hours would be covered under the FLSA.

Secondly, per case law, it seems like that medical treatment would need to be expressly authorized and set up by the employer. It might be more difficult for an employee to get paid their wages while taking time off of work for medical treatment in a disputed workers’ compensation case.

Another complication may be if an employee takes paid leave to attend an employer-ordered medical appointment. Arguably since paid leave or paid time off isn’t mandated by law it might be difficult to bring a claim under the FLSA for the forced taking of paid leave. State wage and hour laws like the Nebraska Wage Payment and Collection Act may provide a remedy.

Why wage and hour law can be better than workers’ compensation claims when it comes to wage payment issues

So why would an injured worker want to claim unpaid wages instead of temporary disability? Several reasons, in Nebraska temporary total disability pays two-thirds of your pay and temporary partial disability pays two-thirds the difference between reduced hours and your average weekly wage. But under wage and hour law, a workers can claim their full wages for time spent going to certain medical visits as part of their workers’ compensation claim.

In Nebraska, overtime pay is not taken into account in determining workers compensation benefits. But under the Fair Labor Standards Act an employee can claim overtime pay. The Nebraska Workers compensation act also caps benefit rates at $882 per week. There is no cap to hourly pay under the FLSA.

Nebraska also has a one week waiting period for benefits. In injuries where disability lasts less than six weeks, that first week of disability isn’t paid. There is no waiting period for unpaid wages under the FLSA.

I’ve written about how the Nebraska workers’ compensation act has weak attorney fee and penalty provisions that make it easy for employers to shortchange employees when it comes to workers compensation disability benefit payments. In contrast the FLSA has strong attorney fee and penalty provisions that make it more attractive to bring claims for smaller amounts. Smaller FLSA claims can also be combined into collective action claims. The Nebraska Workers’ Compensation Act, like most of other workers’ compensation laws, does not allow for collective or class action cases.

The only disadvantage of getting wages over workers’ compensation benefits is wages are taxable while workers compensation benefits are not taxable.

How an employee can bring a wage claim for time spent going to the doctor for workers’ compensation case.

The most important part of a wage and hour case for a worker is being able to precisely prove lost time. This should be simple for injured workers as medical visits usually only take place a few times a week at the most. Many injured workers keep track of mileage already as mileage benefits are part of medical benefits under workers’ compensation in Nebraska. If you can keep track of mileage, you can also keep track of time spent going to medical appointments. If an injured worker turns in mileage to their attorney or workers compensation claims department, there is no reason they can’t turn over claims for unpaid wages to Human Resources directly or through their attorneys.

Anti-retaliation provisions

Retaliation is always a concern of workers who exercise their rights at work. Fortunately, the FLSA makes it unlawful for an employer to retaliate against an employee for exercising their rights under the law. Nebraska and most other states prohibit employers from retaliating against workers who file workers compensation as well.

Irregular shifts complicate workers’ compensation claims

Posted on May 14, 2018 by Jon Rehm

Irregular work hours, driven increasingly by automated scheduling, have lead San Francisco and Seattle to pass municipal ordinances to regulate the practice because irregular schedules make child care, transportation and working multiple jobs increasingly difficult for low wage workers.

Irregular hours also increase the risk of work injury and they can complicate the claims of injured workers. Here are a few ways irregular working hours can impact a workers’ compensation claim:

Benefit rates

Workers compensation disability benefits are paid based on a workers’ average weekly earnings or their average weekly wage – AWW for short. But when you work 40 hours one week and eight the next, what’s your average work week? Mathematically, in this scenario the average week would be 24 weeks. An insurance company would likely use a simple average.

But under Nebraska law a court is supposed to exclude abnormally low weeks from the calculation of average weekly wage. In other words if the case is pushed into court, a Judge will exclude abnormally low weeks which would lead to a higher benefit rate.

Many employers also pay shift differential where night and weekend shifts get a higher hourly wage. Effective hourly wages can vary from week to week for employees who work irregular shifts that include night and weekend shifts.

Nebraska excludes overtime premium in general from AWW, but shift differential still counts. Sometimes insurance companies will exclude shift differentials from their calculations of average weekly wage. This is particularly true when insurers are calculating permanent disability benefits.

It is also common for workers who work irregular shifts to work less than 40 hours a week. For the sake of permanent disability benefits, Nebraska assumes a minimum of a 40-hour work week . Insurers will often not follow this rule. Irregular shift workers are not the only workers who are subjected to this practice, but when you combine exclusions of shift differential along with not using a 40-hour week, irregular shift workers can get substantially underpaid when it comes to workers compensation.

Our firm, like most other firms, represents injured workers on a contingent fee basis. The problem with that arrangement is that while an under payment of benefits may be a meaningful amount of money to an injured worker, it may not be enough for an attorney to justify taking on an underpayment claim on a contingent fee basis. Most state and federal wage and hour laws allow for fee awards that can be many times the unpaid wages. The reason for attorney fee awards in this case is the important public purpose of these laws.

Workers compensation has the same general purpose of as wage and hour laws, but in Nebraska it is difficult to get attorney fees in a disputed workers compensation case because an award of penalties requries a lack of a reasonable controversy. Conventional wisdom is that employees must show a lack of reasonable controversy to win attorney fees. However, some case law seems to distinguish the standard for winning a penalty versus winning an attorney fee.

Medical appointments

Irregular shifts also make it difficult to schedule medical appointments. This is particularly true of specialists who would be treating a more serious work injury. Missing appointments can be a red flag for judges, doctors and insurers if not explained. A good attorney can help an injured worker explain how an irregular work schedule prevented them or interfere with the. from attending medical appointments.

Maximum Workers’ Compensation Rate Increases to $817 a Week for 2017

Posted on January 5, 2017 by Jon Rehm and Brody Ockander

On Jan. 1, 2017, the maximum weekly income benefit under the Nebraska Workers’ Compensation Act was increased to $817 from the 2016 maximum rate of $785 per week. The minimum rate remains unchanged at $49 per week.

Mileage reimbursement rates for Nebraska actually decreased this year to 53.5 cents per mile, down from 54 cents per mile in 2016. For details about mileage reimbursement for workers’ compensation claims, please see these previous blog posts here and here.

The maximum weekly benefit of $817 is 100 percent of the state’s average weekly wage, based on data provided by the Nebraska Department of Labor. Workers’ compensation disability benefits are based on two-thirds of your average weekly wage. So workers who would earn more than $63,726 ($817 times 1.5 times 52) in non-overtime wages would lose out under the cap on maximum benefits. An annual salary of $63,726 works out to roughly $30.64 per hour for a 40-hour workweek.

The fact that workers’ compensation benefits are not taxable somewhat cushions the blow for workers who would lose out under the maximum rate cap, but when a worker is receiving workers’ compensation, that person can sometimes lose the benefit of the employer paying for private health insurance. Injured workers may be forced to pay employers back for paying the workers’ health insurance during a work-injury-related absence.

In most instances, calculating an injured worker’s benefit rate is a fairly simple manner. But some workers who regularly have extended times when they are not working, such as school employees, construction workers, and professional athletes, can present more challenges. If an employee is injured early in employment, then calculating average weekly wage can also be complicated.

Unfortunately, the minimum weekly income benefit remains the same at $49 per week. This amount has not changed since 1973. Often, the minimum-income benefit is not an issue in most workers’ compensation claims, because most people make well-over $73.50 per week (which would be the amount necessary for $49 per week in workers’ compensation benefits). However, this minimum-income benefit can come into play in situations where an employee only works a on a very limited basis with an employer, or simply does an odd job for an employer here or there. In those situations, a devastating injury could be paid at only $49 per week, even if the injured worker had another full-time (and much higher-paying) job if the injury occurred while working on one of those small part-time jobs. The Nebraska Legislature needs to take a look at a rate increase for the minimum for this specific reason.

Though benefit rates are capped for purposes of payment of disability, they are not capped for purposes of vocational rehabilitation or “voc rehab.” Voc rehab is intended to help an injured worker return to a job of similar pay. For example, if a worker earning $90,000 per year is injured and can’t return back to work earning $90,000 per year, that person is entitled to training that would allow the worker to return back to work at $90,000 a year. However, during that retraining, this injured worker would be limited to receiving benefits at the maximum rate for the date of the injury.

Workers earning over the maximum rate could also collect temporary partial disability up to the maximum rate if they were working at reduced time and their wages were high enough.

While the $63,726 total for a year of maximum weekly benefits would be a good income for a single person, that income would qualify a household larger than two for subsidies under the Affordable Care Act. The high price of child care often leads families to decide to have one spouse stay home and take care of the children while the other spouse works. So for higher-paid workers, even an injury where the employer/insurer takes responsibility for the injury can lead to financial turmoil.

Average Weekly Wage Decides Workers’ Comp Benefits

Posted on February 25, 2013 by Jon Rehm

Workers’ Compensation benefits are partially determined by your average weekly wage.

One of the factors that determines how much you receive in workers’ compensation benefits is the calculation of your average weekly wage. In Nebraska, in most cases, average weekly wage is calculated by:

going back 26 weeks
multiplying your hours times your straight time pay
excluding abnormally low-hours weeks (generally those of 32 hours a week or less)
taking the total amount of wages earned in non-abnormally low work weeks divided by the number of non-abnormal weeks.

Multiply your average weekly wage by two-thirds, and that is what you should receive for your weekly workers’ compensation benefit. That amount is exempt from federal and state taxes in Nebraska, so your work comp check should oftentimes be close to your actual take-home pay, unless you are working a lot of overtime.

There are all sorts of exceptions to the basic way to calculate average weekly wage. If you receive a fixed amount for room and board as part of your contract, then that amount is included in addition to your wages. If you just started at your employer, then a court might look at what other workers were making in the six months before your injury to determine your average weekly wage. An employer might also try to reduce your workers’ compensation benefits if they can deem you a “seasonal employee.” School-district employees will often be paid workers’ compensation benefits based off a weekly average of their annual pay.

There are two types of workers’ compensation benefits: temporary and permanent. Employees who work less than 40 hours a week will be paid permanent disability benefits based on a 40-hour week. But please keep in mind that all of these rules vary from state to state.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: average weekly wage

Maximum benefit rate for workers comp. benefits in Nebraska increases unprecedented 7.5 percent for 2022

How to get paid regular wages for missing work due to a medical visit in a workers’ compensation case

Irregular shifts complicate workers’ compensation claims

Maximum Workers’ Compensation Rate Increases to $817 a Week for 2017

Average Weekly Wage Decides Workers’ Comp Benefits

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