An Omaha senator seeks to limit or end the time many injured workers in Nebraska receive no workers’ compensation benefits due to insurance companies unfairly interpreting Nebraska case law about when payment for temporary disability benefits end and when payment for permanent disabiliy begins.
LB 526 introduced by State. Senator Mike McDonnell would add language to Neb. Rev. Stat. §48-121 that would continue temporary disability until the later of a) any permanent disability as measured by permanent impairment for a scheduled member disability has been determined or, in the event of a claim payable under a loss of earning power basis when a loss of earning power evaluation is complete or b) 30 days after the employee has been given notice of termination.”
The bill also requires employers to provide copies of evidence used to end temporary disability and give the employees the right to a medical examination at their employer’s expense in certain circumstances when temporary disability payments are halted.
The argument underlying the squeeze is that temporary disability ends when a doctor states a worker has plateaued medically. That means temporary disability benefits stop. But permanent disability has needs to be ascertained before permanent disability benefits start. This could mean waiting for a permanent impairment rating or it could mean waiting for an FCE, having a doctor endorse the results and then having a vocational counselor determine disability. This can take weeks or even months. If an employee isn’t working that means weeks or months without income. I think allowing insurers to exploit the gap between temporary and permanent disability is an incorrect reading of the law because doesn’t effectuate the beneficent purpose of the Nebraska Workers’ Compensation Act to pay benefits in a timely manner to injured workers.
I also like the notice provision of the legislation. Once an injured worker starts receiving temporary disability benefits, they have some expectation that they will continue which would arguably create a constitutional property interest in continued receipt of those ongoing workers’ compensation benefits. Ending those benefits with no notice or explanation would arguably violate due process.
Critics of the legislation may point out there are cases involving multiple scheduled members that can also be paid on a loss of earning power basis which could cause uncertainty about the period of when temporary disability should continue. In such cases I believe that prompt payment of scheduled member impairments helps to eliminate the gap issue. However impairment ratings under the AMA 6thmay undercompensate injured workers and be less likely to address the gap issue.
Our firm was active in drafting recent changes to Nebraska workers’ compensation law
Two changes to Nebraska workers’ compensation law that became effective today could speed up receipt of settlement proceeds for injured workers.
LB 953 will allow settlements to be approved quicker if lawyers representing the injured worker certify the settlement is in the best interest of the worker. These changes should result in more settlements being paid within weeks rather than months. The current law requires court approval of many final settlements.
Another change this year to workers’ compensation laws came with the passage of LB 957, which allows for electronic payment for workers’ compensation indemnity benefits. As of July 19, 2018, if a worker is entitled to indemnity workers compensation benefits, he or she may be paid via direct deposit, prepaid card, or other electronic means. The employee must agree to be paid via electronic payment and the employer must notify the employee of each electronic payment. If handled properly, this could mean quicker payment of workers compensation benefits to the employees.
Workers compensation law was created by the Nebraska legislature. The legislature changes the law occasionally. Rehm, Bennett, Moore, Rehm & Ockander monitors those proposed changes and was involved in drafting these changes working on behalf of the Nebraska Association of Trial Attorneys.
Workers compensation law is slightly more than 100 years old. It has become a fundamental protection for workers and their families. Sadly, insurance and business interests have been attacking this basic law for more than 25 years. The effort has been nearly continuous with legislative and administrative proposals aimed at lower benefits to workers and their families while raising profits for business and insurance.
This law firm believes we have an obligation to fight these attacks on behalf of our clients and their families. The past week is an example. Rod Rehm spoke to a group of lawyers on how to defeat these attacks at the Northwest Regional Conference of the Workplace Injury Law Advocacy Group www.wilg.org held in Whitefish, Montana. The event was attended by Michael Gruber, Brooklyn, NY, current President of WILG, Amie Peter, Edmonds WA, President-elect of WILG, Chuck Davoli, New Orleans, LA past President of WILG and chaired by Tom Murphy of Great Falls, MT along with a hearty group of workers compensation lawyer from the Northwest part of the U.S.A.
It was great to share information with and learn new and better ways to win our cases and court and continue to defend the law in the legislature. WILG is a great organization fighting for workers 24/7/365 all across the USA.
Jon Rehm testified at the Business and Labor Committee of the Nebraska Legislature on behalf of the Nebraska Association of Trial Attorneys, NATA, www.nebraskatrial.com concerning efforts to limit drug prescriptions for our clients. Our office and NATA is concerned that efforts to attack opioid addiction will harm our clients unless written carefully. Protecting good medical care for injured workers is more important than saving prescription costs for business and insurance under the guise of attacking addiction.
Testifying in the legislature is a regular part of being a lawyer at Rehm, Bennett and Moore. We actively work to protect workers’ rights in every forum we can.