However, the Nebraska Workers’ Compensation Court has never really ruled on Facebook in the context of discovery matters in a work comp claim, meaning how much access can your employer have to your Facebook account if you file a workers’ compensation claim?
Recently, however, the Nebraska Workers’ Compensation Court (at least one judge) has taken the position that in order for your employer to gain access to photographs from your Facebook profile, it must “make a showing of the necessary factual predicate underlying [the] broad request for access.” In other words, your employer must have a decent reason to suspect that a certain photograph or something from your Facebook account has the potential to be relevant to the work comp case before the court will simply grant full access to your Facebook account to your employer.
Therefore, depending on your situation, your Facebook may be safe from your employer to some degree. However, this is a cautionary tale to remind you that even though your employer cannot simply have blanket access to all of your Facebook photos – at least according to one Nebraska judge – it does not mean that your Facebook photos or posts are necessarily safe from your employer gaining access to them at some point during your work comp case. I think the judge in this case takes a step in right direction, but you still must be aware that anything you put on Facebook may be subject to discovery (i.e., your employer may still possibly get access to it) at some point in the future.
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.
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.
Getting hurt at work and getting fired are two of the most stressful occurrences for an employee. Oftentimes, these stressors are combined when an injured worker receives a severance agreement. This article provides five questions an injured worker who gets a severance agreement should ask:
Does signing a severance agreement settle your workers’ compensation claim? Connecticut courts recently ruled that a severance agreement does not release a workers compensation claim. However, Florida courts have held the opposite. My state of Nebraska generally does not allow workers’ comp claims to be released in severance agreements. Consult with a lawyer in your state to get a good answer. Most lawyers who do workers’ compensation work on a contingent fee basis are generally happy to spend a reasonable amount of time answering questions from injured workers faced with a severance agreement. Don’t let fear of cost deter you from contacting a lawyer.
What does your state’s workers’ compensation act cover? Some workers’ compensation statutes, like Ohio and Texas, also cover retaliatory discharge cases. My state of Nebraska makes wrongful discharge a separate civil claim. The consequence of that for injured workers in Nebraska and other states with so-called “common law” retaliatory discharge causes of action: a severance agreement would close out that case along with most other claims under fair employment statutes like the ADA, FMLA and Title VII. If you are in a state where retaliatory discharge is covered under your workers’ comp statute, then that case may not be released in a severance agreement in a comp claim if your state doesn’t allow comp claims to be settled in severance agreements.
What are your chances for receiving unemployment benefits? Finding out your chances of receiving unemployment is critical – again, especially if you are forced to choose between severance and workers’ compensation. The key questions to ask for eligibility for unemployment are 1) whether you earned enough wages to be covered 2) whether you quit without good cause or were fired for misconduct and 3) whether you are able and available for work. Of course, if you have an ongoing workers’ compensation claim, the fourth question is how receiving unemployment would affect your workers’ compensation claim. If you chose to negotiate your severance agreement, either by yourself or with a lawyer, try to include a provision where the employer chooses not to oppose your application for unemployment benefits.
Do you get benefits like vacation pay, even if you don’t sign a severance agreement? In some states, including my state of Nebraska, an employee should receive vacation pay or paid time off regardless of whether they sign a severance agreement or not. Again, if you live in a state where an employer can release a workers’ compensation claim through a severance agreement, your eligibility for vacation pay along with unemployment benefits should help you decide whether it make sense for you economically to pursue your workers’ compensation claim if you have to pick between severance and workers’ compensation. This also holds true for severance agreements in general if you an employer is asking to you to release a strong fair-employment claim for a low-ball severance amount.
Did you contact a lawyer who is knowledgeable about workers’ compensation? This is a critical period and critical especially if you live in a state where comp claims can be released by severance agreements. An experienced workers’ comp lawyer can value your comp claim. Some ways to evaluate whether a workers’ compensation lawyer is knowledge is to check whether they are a member of the Workers’ Injury Law & Advocacy Group (WILG). Another is to see if you can search them on your state’s workers’ compensation court website or through free legal research services like FindLaw and Google Scholar. A knowledgeable workers’ compensation lawyer in your state should also be able questions 1-4.
Injured workers are often forced to navigate the tricky waters of unemployment when they have a workers’ compensation claim. Not understanding how the two sets of laws interact can lead injured workers to trouble in unemployment and workers’ compensation for people who can ill afford the trouble. Here are some answers that Nebraska workers applying for unemployment after a work injury would want to know.
When can you receive both workers’ compensation benefits and unemployment at the same time?Nebraska law allows you to collect workers’ compensation benefits and unemployment benefits at the same time only if your rate of weekly work comp benefit is worth less than your weekly unemployment. In that case, you collect your full workers’ compensation benefit, and unemployment pays the difference between your comp check and the unemployment benefits check. The advantage to the worker in this scenario is that the workers’ compensation is not subject to tax, while the unemployment benefits are taxable.Unemployment and workers’ compensation benefits rates are set under different formulas. You might fall into this category if you were injured shortly after starting a lower-paying job but had previously earned higher wages for a length of time at your previous job.However, if you do receive workers’ compensation benefits that are higher than your unemployment benefits, you cannot collect unemployment benefits.
Won’t I “hurt” my workers’ compensation case if I have received unemployment benefits?There used to be some truth to concerns of unemployment benefits reducing the amount an employer has to pay on a workers’ compensation case. However, those concerns have temporarily been eliminated by the recent case of Hernandez v. JBS, found at this link: http://www.supremecourt.ne.gov/sites/supremecourt.ne.gov/files/coa/opinions/a12-435.pdf. In Hernandez, the Nebraska Court of Appeals overruled a Nebraska Workers’ Compensation Court judge who reduced the temporary total disability (TTD) pay awarded to a worker, who was fired by JBS, by the amount he received in unemployment.I believe the Nebraska Court of Appeals used sound reasoning to make their ruling in Hernandez. However, the Nebraska Supreme Court has the ability to overturn the Nebraska Court of Appeals. Also, the Nebraska Legislature has the ability to rewrite Nebraska workers’ compensation and/or unemployment laws to overturn Hernandez.I would expect efforts to overturn Hernandez will be made in the courts and Legislature. My guess is the argument for overturning Hernandez will be that injured workers are receiving a “windfall” by receiving workers’ compensation on top of unemployment.
This argument is nonsense. First of all, if a worker receives work comp benefits and unemployment, judges with the Nebraska Department of Labor and the Nebraska Workers’ Compensation Court have likely both found that the employee was not at fault for being terminated. Second, if a worker who cannot work because of a work injury is forced to apply for unemployment because he or she isn’t receiving workers’ compensation, there is a good chance that the employer either concocted a reason to fire the employee or forced the injured worker to do a job that she or he was unable to do.
Two bills, LB 307 and LB 584, are scheduled for hearings in the Business and Labor Committee at 1:30 p.m. on Monday, Mar. 18, in the Nebraska Legislature’s Room 2102. These bills could gut the protections workers get through the workers’ compensation system in Nebraska, including taking the choice of doctor away from workers. The bills would also take many decisions out of the realm of the doctor-patient relationship, local control, and even the state’s control, and hand those decisions to workers’ employers, insurance interests, and private companies that are focused more on making money than ensuring workers’ health and safety. A bill similar to LB 584 promoting evidence-based medicine fortunately did not get out of committee last year.
To educate folks more on some of the bills before the Legislature that affect workers and also see the perspectives the firm has to advocate for workers, please read these blog posts:
Help lawmakers hear your voice by getting involved and being vigilant! Call, email, or write your senator to share your personal story and how these bills affect real people. These links may be useful for contacting senators: Find Your Senator, Senators’ Web Pages, Senator Roster, and Business and Labor Committee. Members of the Business and Labor Committee include Sen. Steve Lathrop (District 12), Chairperson, Sen. Brad Ashford (District 20), Sen. Ernie Chambers (District 11), Sen. Thomas Hansen (District 42), Sen. Burke Harr (District 8), Sen. Amanda McGill (District 26), and Sen. Norman Wallman (District 30).
Because citizens’ involvement and interest in workers’ protections matter. Hearing from workers affects how our senators vote. So don’t take programs like workers’ compensation for granted – stand up, get involved, and be heard!
New legislation has been proposed to reduce the quality of medical care for workers under the guise of reducing costs
Evidence-based medicine and utilization review (EBM/UR) of medical care for workers’ compensation are currently being pushed by big business and big insurance interests.
We are facing such legislation in Nebraska this year.
One reason supporters of this way to control medical care for workers give seems to be that medical care currently provided is “inefficient.”
This is a euphemism for medical costs are too high. I view this as critical of physicians and other health-care providers who are taking care of injured workers. The Florida Medical Association (FMA) has recently responded to this type of criticism of the medical profession. In their case, the Office of Insurance Regulation (OIR) and National Council on Compensation Insurance (NCCI) say workers’ comp rates are being raised because drugs are dispensed directly by doctors. But an OIR report, according to the article linked below, “shows virtually no difference in the cost of such drugs whether dispensed by doctors or pharmacies,” so the FMA disagrees with blaming their doctors for rate increases.
This quote is from the story linked to above: “The truth is that the NCCI and carriers have used physician dispensing as a scapegoat for hundreds of millions of dollars in rate increases when other medical costs have been the real cost drivers in workers’ compensation,” the group charged. “The numbers are fabricated in an attempt to eliminate doctor dispensing.”
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.
If an injury or an accident would not have happened if you weren’t already injured in the first place, then workers’ comp should pay for it.
Many times an injured worker is taken off work and is further injured at home. Or someone may sustain another accident and injury while traveling to a medical appointment or picking up their medications. Does workers’ compensation coverage extend to these additional accidents and injuries?
In Nebraska, it does.
For example, Mr. Smidt slipped and fell on the ice at his home when he returned from physical therapy; Ms. Baker was involved in a motor-vehicle collision going to her doctor’s appointment. Mr. Johnson, who had a broken ankle, fell down his stairs because he lost his balance, so he sustained another fracture injury. These are common scenarios of a worker who gets injured at work and sustains further injuries or another accident as a result of the original work accident.
These events can be described as “quasi-course of employment” and focus on the activities and circumstances that an injured employee encounters following an injury, though they take place outside the time and space limits of a worker’s normal employment.
Even though these events would not be considered employment activities for usual purposes, they are nevertheless related to the employment in the sense that they are necessary and/or reasonable activities that would not have been undertaken if not for the original compensable accident and injury.
If you or a friend has something like this happen but the insurance carrier is not taking responsibility for the additional injury and medical care, contact an experienced attorney to investigate and file a claim. Protect yourself, your friends, and your family from paying for shouldering medical expenses for additional injuries that are compensable.