Tag Archives: attorney fees

Nebraska Supreme Court rules on employment risk, attorney fees and third party claims

Posted on by

The Nebraska Supreme Court has made three recent rulings about workers’ compensation

Three important cases have recently come down from the Nebraska Supreme Court regarding workers’ compensation claims.

Probably the case with the biggest impact is Maroulakos v. Walmart case. In that case, the Supreme Court affirmed a decision by the trial court that found that an injury was not compensable when a worker was injured because of an “idiopathic” fall. What makes this case distinct from its predecessors is that it appears as though there was possibly evidence that there was an increased risk to the injured worker, which could have made the idiopathic fall compensable. However, the trial court did not explore that option and the Supreme Court found that it could not make a determination on an issue that was not at issue during the trial court. In other words, it appears that the Maroulakos case puts an extra burden on the Plaintiff to ensure that an “increased danger” analysis is overtly pled and argued at trial for idiopathic falls. The concurrence in that opinion hints that the at the trial court level, the court probably should have conducted an analysis as to whether there was an increased-danger when there was evidence presented that could contribute to that analysis of an idiopathic fall.

Another recent case was Dragon v. Cheesecake Factory. In Dragon, the work comp case reached a settlement that was accomplished via a settlement release under Section 48-139(3). The settlement was not paid, however, within the 30-day limit proscribed in 48-139(4) and thus, the Plaintiff argued that he was entitled to a 50% penalty for the late payment. The trial court denied the penalty under a theory that it did not have authority to award a penalty after the release had already been signed. The Supreme Court overturned the finding of the trial court and awarded the penalty based on the fact that the Nebraska Legislature cleared up any ambiguity in the statute in awarding penalties for settlements that are not paid within 30 days.

The final case that recently came down worth discussing is Gimple v. Student Transp of America. In Gimple, there are two take-aways. First, if there is a third-party action, along with the work comp claim, the Work Comp Court does not authority to make a determination of future credits for the employer or work comp carrier based on any monies paid in that their-party action.

Second, if there is a stipulation and no dispute as to an injury; then, there is a permanent impairment assigned to that injury, the Defendant must pay the permanent partial disability in a timely manner, within 30 days. In other words, there is no reasonable controversy.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in attorney fees, employment risk, Nebraska, third party claims, Workers Compensation and tagged , , , , .

Irregular shifts complicate workers’ compensation claims

Posted on by

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.

 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Nebraska, Workers Compensation and tagged , , , , , .