Nebraska is a state that has a “prompt payment rule” for medical expenses in workers’ compensation cases. This means that so long as your employer has sufficient knowledge that your medical care is necessary because of the injury, your bills should be paid. This is a huge plus because even a minor workers’ compensation injury can cause an employee to rack up thousands of dollars in medical bills.
In Nebraska, delay of medical payment is treated as a denial of a claim. That is why a delay in paying for medical bills from a work injury gives the employee the right to pick their own doctor for a work injury.
The issue of doctor choice brings up a couple of the hidden dangers of the prompt payment rule. Many times, employers will promptly pay medical expenses for doctors who will oftentimes release employees before they are done healing and return employees back to work before they are ready. Employees need to be able to know their doctor-choice rights before they agree to an employer/insurer-oriented clinic or doctor – especially if that doctor is not their family doctor. link know their doctor choice rights to title Physician choice crucial to work comp claimants )
Secondly, employees can get lulled into contentment when an employer pays their medical bills. Medical benefits are one aspect of workers’ compensation benefits; the other is loss of income benefits. An employer/insurer may use their leverage with a doctor to minimize loss of income benefits. Also, when employees get into litigation, they are oftentimes confused by the fact that an employer will pay for medical benefits, but not loss of income benefits, or will deny that the injury is even work related. This is related to the prompt payment rule. Just because an employer pays medical bills, that doesn’t necessarily mean that they or a workers’ compensation judge will believe those medical bills are related to the work accident.
This time of year, many people get holiday jobs to earn extra money. That means some people will get injured at work and run into other difficulties working holiday jobs. Here are six tips on how to deal with the workplace challenges arising from holiday jobs. These tips for safe and fair employment apply just as well to any second job, not just a holiday job.
Just because you have a “holiday job” doesn’t necessarily make you a seasonal employee: In some states, including my home state of Nebraska, employees can have their benefits reduced if they are a “seasonal employee.” However, even if you have a holiday job, your job may not be seasonal. In Nebraska, “seasonal employment” is defined as a job that is dependent on weather or can only be done during certain times of the year. For example, if you hurt your back working at an electronics store at your holiday job, that employment is not seasonal because you can work at an electronics or really most any retail store at any time of the year.
You can’t be paid workers’ compensation for how your holiday or second job affects your regular job: If you are off work at your regular job because of an injury at your second job or holiday job, you are only paid income-replacement benefits for the income you lost at your holiday job or second job. For example in Nebraska, if you were hurt at your holiday/second job that pays $120 per week and you are unable to do your regular job that pays $600 per week, your only income benefit would be two-thirds of your second/holiday job, which would be $80. Employees should be extra cautious in second jobs or holiday jobs for just that reason. Employees should also consider applying for private disability plans if they plan on having a second job in order to account for the possibility of losing income due to an injury at their second job. In short, employees should do a thorough cost-benefit analysis before taking a holiday job or second job.
Your permanent disability benefits could be better than your temporary benefits: In full-time employment, permanent and temporary disability benefits are generally fairly close. But with part-time employment, permanent disability benefits may be much higher than temporary benefits. In my state of Nebraska, temporary benefits are paid based on a typical work week. For example, if you are a part-timer working 12 hours a week at $10 per hour, your temporary disability pay would be $80 a week. However, in Nebraska and some other states, permanent disability is based on no less than a 40-hour week. So if you are a part-timer getting paid $10 per hour, your permanent disability rate would be $266.67 per month. This is good for employees, because serious injuries will usually have permanent effects that can permanently affect an employee’s ability to earn a living.
If you are an injured part-time worker and your insurance company is trying to force you to take a settlement based on your part-time wage rate, you should consult with an attorney in your state.
Your employer/insurer may be low-balling your wage rate: Say you get paid $8 an hour as a barista but you have an agreement to share tips, or you work in retail but you get store credit, or you teach exercise classes at a health club but you have an agreement that you get a free membership. In any of those scenarios, you could possibly use those benefits to increase your loss-of-income benefits.
You are still protected by most fair-employment laws: Part-timers are still covered by most fair-employment laws. The most glaring exception is likely the Family and Medical Leave Act (FMLA), which provides 12 weeks of unpaid leave and job protection for employees with a serious health condition, to care for a close family member with a serious health condition, or take care of a close family member who is affected by a military deployment. FMLA requires 1,250 hours worked in the last calendar year and 1 year of employment. That 1,250 hours a year translates to roughly 24 hours a week. Many people working second jobs don’t meet the eligibility standards for FMLA.
Independent contractor, independent conschmacktor: Many holiday employees do fairly low-wage work that doesn’t require any specialized training or education. If this describes your holiday job or second job, then you are an employee, despite the fact that your company may have classified you as an independent contractor. Since you are an employee, you should be covered by workers’ compensation law. If you are misclassified as an independent contractor, you should look for other employment and consider reporting your unscrupulous employer to the United States Department of Labor or to your state’s department of labor.
Firm founder Rod Rehm won a major victory for workplace safety in Nebraska yesterday. The longstanding exclusive remedy rule for work-related injury and death cases was limited.
Lancaster County District Court Judge Steven Burns issued a ruling allowing the parents of Neil Cary, a young man killed in a workplace accident outside of Lincoln, to let a jury determine whether the negligence of their son’s employer caused his death. To a non-lawyer, this decision may not sound like news, but this ruling is big news. Historically, the exclusive remedy for injured workers and their families is to sue for limited damages through the separate workers’ compensation court system. So until this ruling, workers’ heirs couldn’t sue a negligent employer for full damages from a work-related death.
Cary’s parents didn’t receive any workers’ compensation benefits for the loss of their son. Workers’ compensation death benefits only pay money for loss of income to survivors who were dependents of the worker. If a parent is not financially dependent on the child, which is usually the case, a parent is not entitled to receive compensation under Nebraska’s workers’ compensation law. Accordingly, burial expenses and end-of-life medical care were the only benefits paid on Cary’s behalf.
The trial court judge ruled that since Cary’s parents were not entitled to any workers’ compensation, he would allow them to seek damages directly from their son’s employer. The judge ruled that workers’ compensation was not the exclusive remedy for these parents. This ruling will allow parents to recover fair compensation from employers who don’t provide a safe workplace.
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.
In order to qualify for Social Security disability benefits, you have to prove that you have one or more physical and/or mental impairments that are severe and that prevent you from engaging in substantial gainful activity.
Substantial gainful activity is measured by the amount of money per month that you can earn.
The Social Security Administration will take into account your educational background, job history, and the skills you have acquired in determining whether or not you meet this standard. The fact that you cannot go back to the job you have done for most of your life does not necessarily mean that you can qualify for Social Security disability payments.
I am licensed in Nebraska and Iowa and handle workers’ compensation, personal injury, and Social Security disability appeals for the firm. If you have questions about Social Security disability benefits or the appeal process in another state, I can refer you to another expert attorney.
My work comp check was late or hasn’t come yet. Now what?
If you are entitled to workers’ compensation checks, and the insurance company has not paid them on time, you might be entitled to a penalty from the insurance company in addition to the amount that you are owed.
The penalties for late payments vary from state to state, but most states have laws to help workers when this problem arises.
In Nebraska, the work comp insurance company has 30 days to pay benefits from the day that it has notice of the disability, or 30 days from the day that the Court entered an Order, Award, or Judgment. If the insurance company does not pay the benefits within those 30 days, you may be entitled to Continue reading →
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 →
Surprisingly, many employers and insurance companies actually believe workers hurt themselves on purpose or at the very least put themselves in positions where they think an injury is likely. We hear this a lot as a basis for not settling claims for existing employees. Employers are worried that it will encourage other employees to get injured as well. What does that say about the particular employer who believes this? Either they are downplaying lots of injuries or they truly believe employees are willfully getting hurt.
The reality is that most of our clients come to us because their injury-related medical bills are not being paid or they’re not being paid for time off from work due to their injury.
In this age of limited, and in some cases very limited, workers’ compensation benefits, you would have to be an imbecile to actually believe people are willingly causing permanent injuries to themselves to cash in on the “windfall” that is workers’ compensation. Who would honestly trade even thousands of dollars for a lifetime of uncompensated pain and suffering? The reality is that most of our clients come to us because their injury-related medical bills are not being paid or they’re not being paid for time off from work due to their injury. The vast majority of them don’t even ask how much they could get for their injuries in their initial meeting with us, as I’m sure is the case with most workers’ compensation law firms.
This is one of a long line of personal-injury myths perpetrated by the insurance industry to make filing a workers’ compensation claim a stigma. It’s similar to the one about “if you file a claim our premiums will go up and they’ll have to shut down the plant.” Shouldn’t the question really be: are we requiring too much physically of our employees, and if so, what can we do to make things safer? Instead, Continue reading →