Tag Archives: Benefits

Workers’ Compensation Basics: Trials

Posted on November 2, 2015 by Brody Ockander

If your workers’ compensation claim has been denied or if there are any disputes involving your workers’ compensation claim, your lawyer may file a Petition with the Workers’ Compensation Court. This Petition is a lawsuit against your employer and the workers’ compensation insurance carrier, seeking benefits to which you are entitled but are not properly being paid.

Once a Petition has been filed, the case will be assigned to one of the seven workers’ compensation judges in Nebraska. Then, the case will eventually be given a trial date; this date is usually less than a year after the petition is filed (nine months is a good estimate).

The trial will then be held in the county where the accident occurred. If the accident occurred out of state, then the trial will be held in Lincoln. However, the parties may agree to have the trial anywhere within the state if another location is more convenient for those involved. In situations where it may be difficult for a witness or party to attend trial in person, the parties may agree to conduct the trial via videoconference with the judge.

When it comes time for trial, the judge assigned to the case will hear all of the evidence (including the testimony from all witnesses). The trial usually takes about a half day or sometimes a whole day, depending on the number of witnesses. Rarely do workers’ compensation trials go beyond one day. After the trial has concluded, the judge will issue a decision in approximately one to six months. At times, however, issuing the decision can take even longer than six months on more complicated cases. The decision will be either an Order of Dismissal of the case or an Award of Benefits for the case. In either instance, any issues that were presented at trial will have been addressed by the Court in the decision, which is a final order. Although the decision is final, either party may choose to appeal the decision to the Nebraska Court of Appeals and/or eventually to the Nebraska Supreme Court.

Today’s blog post is a part of a continuing series that explores the basics of workers’ compensation. Please read the previous blog posts in the series by clicking on these links, and be sure to consult an experienced workers’ compensation lawyer with questions:

Workers’ Compensation Basics: Payments to Workers and their Families

Posted on August 20, 2015 by Rod Rehm

Here’s the next installment in the firm’s series that focuses on the basics of the workers’ compensation system. It gives information on how payments to injured workers and/or their families are handled.

Workers’ compensation generally pays by the week, although it may be paid bi-weekly or monthly in some circumstances. The amount of the payment is established by state laws or statutes, regulation or court decision.

Family members are paid in the event of the death of a worker arising from an accident or disease. Family members are occasionally paid for providing home-health care.

The amounts paid and duration of payment varies from state to state. Generally there is a minimum and a maximum. The maximum is usually two-thirds of the gross wages earned, with a limit that is adjusted from time to time.

To calculate the amount actually paid, most states use average wages for a specified number of weeks or months before the injury, death or disease.

Payments are made for temporary inability to work, which is generally labeled temporary total disability. There may be a waiting period before payments begin. The waiting period varies from state to state.

Payments are also made when a worker is temporarily limited to light duty and working either fewer hours or for a lower rate of pay. These benefits are called temporary partial disability.

Payments are made for permanent inability to work and, if severe enough, some states pay for the worker’s lifetime. Some states do not pay for less than lifetime. These benefits are called permanent total disability.

Payments are made for permanent reduction of the ability to work. This benefit is normally labeled permanent partial disability.

Payments that are made for loss of body parts or limited use of body parts are also labeled permanent partial disability. State law establishes the value of the various body parts.

Payments are less frequently paid while workers are participating in retraining or vocational rehabilitation. This is not a common benefit.

WORKERS’ COMPENSATION DOES NOT PAY FOR PAIN AND SUFFERING.

It is important to contact an experienced workers’ compensation lawyer if you have questions or concerns about any of the information shared here. Please read the previous blog posts in the workers’ compensation basics series by clicking on these links:

Workers’ Compensation Basics: Understanding Social Security Disability Offsets

Posted on August 13, 2015 by Roger Moore

This is the next post in the series that looks at the basics of workers’ compensation. If you receive both workers’ compensation benefits and Social Security Administration disability benefits, please be aware of the concerns raised here.

The most important thing a worker who is entitled to receive both workers’ compensation and SSA disability benefits can do is report the amount of workers’ compensation benefits to the Social Security Administration, in writing if possible. Failure to do so can result in an overpayment that may not be uncovered until years later and may be thousands of dollars.

However, the reporting of these benefits doesn’t ensure the SSA will make the proper adjustment to your SSA monthly benefit. As such, it’s important to follow up with the SSA once you have reported your benefit amount to ensure they adjust your SSA benefit to account for this. This will help ensure an overpayment is not found years later. Be sure to ask an experienced workers’ compensation lawyer if you have questions.

Please read the previous blog posts in the workers’ compensation basics series by clicking on these links:

Benefits: Do You Use What You Get?

Posted on August 10, 2015 by Emily Wray Stander

Source – Project: Time Off

As the firm’s research and marketing director, I spend quite a bit of time finding topics for social-media discussions and generally researching on the Internet. One of the sources I’ve listened to for years on my personal time is the Marketplace suite of shows, first on the radio, now with the convenience of podcasts.

They bill themselves as “business and economic news” and frequently cover what I would consider workers’ issues like safety, employment trends, and benefits, usually resulting in very balanced, informative reporting.

As the end-of-summer activities put a focus on children returning to school, many people are wrapping up their vacations for the year. But others don’t take summer vacations, as they are either saving up their time for something else, don’t have the luxury of those kinds of benefits, or just don’t take advantage of the benefits offered.

In today’s blog post, I challenge you to think about how you use any benefits that are available. If you have the luxury of vacation days and sick leave, or just blanket paid-time-off days, do you take those days or not?

There were three recent stories from Marketplace that offered perspective about the specific workplace benefits of vacation and parental leave (parental leave is when a child is born or adopted).

Please consider taking a few minutes to read and/or listen to them:

Although some may say these are idealistic or even untenable situations from a business perspective, I wonder about what workers at these businesses think. Is the reality as rosy as the policy? What kind of a workplace culture can support an idea like unlimited vacation? Is there resentment among the workers about who is gone when? And with great benefits, can workers increase or stand up to the scrutiny of expected productivity and actually get to enjoy those benefits?

I think this quote from the unlimited-vacation story is the most helpful and boils down to folks working hard while they are at work and then recharging while they are away. It also is a results-oriented argument for offering good benefits for workers.

“‘Team members can take time off whenever they need it or whenever they want to,’ says Netta Samroengraja, CFO and chief people officer. ‘We feel like we have a much more motivated work force and they’re absolutely much more productive as well while they’re here.’”

Have a safe and productive day, and take care.

Workers’ Compensation, Social Security Offset and Overpayments

Posted on June 29, 2015 by Roger Moore

Social Security disability benefits are subject to an offset, or reduction, when paid to a claimant who is also receiving workers’ compensation benefits. Technically, the reduction applies if the total of the two benefits exceeds 80 percent of the worker’s “average current earnings” or ACE. The worker’s ACE is calculated as the largest of three averages:

average monthly wage used for purposes of computing Social Security benefits;
1/60 of the total wages for five consecutive calendar years for which such wages were the highest; or
1/12 of the total wages for the calendar year in which the worker had the highest such wages during the period consisting of the calendar year in which he or she became disabled and the five consecutive calendar years preceding that year. Clearly this is not a simple calculation that most workers can undertake.

In most instances, when a worker is receiving temporary or permanent total disability payments, they will not be entitled to receive any disability pay from the Social Security Administration. When a worker is receiving permanent partial disability payments, they likely will be entitled to receive at least a portion of their SSA disability pay. In many cases, settling a workers’ compensation case can increase the monthly SSA disability benefit.

At any rate, the most important thing a worker who is entitled to receive both workers’ compensation and SSA disability benefits can do is report the amount of his workers’ compensation benefits to the Social Security Administration, in writing if possible. Failure to do so can result in an overpayment that may not be uncovered until years later and may be thousands of dollars. However, the reporting of these benefits doesn’t ensure the SSA will make the proper adjustment to your SSA monthly benefit. As such, it’s important to follow up with the SSA once you have reported your benefit amount to ensure they adjust your SSA benefit to account for this. This will help ensure an overpayment is not found years later.

Is a Pulmonary Embolism Compensable under Workers’ Compensation?

Posted on June 15, 2015 by Brody Ockander

The short answer is yes, but it could be difficult to prove if it is not directly related to another workers’ compensation injury. In Nebraska, proving a pulmonary embolism and deep vein thrombosis (DVT) requires the same legal and medical causation tests as a heart attack or stroke (see Zissin v. Shanahan and Wingfield v. Hill Brothers Transportation, Inc.).

What that means is legal causation must be proved by showing that exertion or stress encountered during employment is greater than that experienced during the ordinary non-employment life. Then, it must also be proven by medical causation: i.e., show that the employment contributed in some material and substantial degree.

On the other hand, if someone develops DVT as a result of another injury caused by work, it would probably be much easier to meet the causation required to prove compensability. For example, let’s say a worker injures his knee during work and has surgery on that knee. Then, as a result of the surgery, a postoperative complication of DVT arises and eventually becomes a pulmonary embolism. In that scenario, the pulmonary embolism is clearly related to the work injury and clearly compensable.

Absent a prior injury, however, causation must be met by the standards stated above, which will be very fact intensive. An example of this scenario came up in the recent case, Wingfield v. Hill Brothers Transportation, Inc., 288 Neb. 174. In that case, a truck driver for 35 years asserted that his deep vein thrombosis and pulmonary embolism was from sitting while driving a truck so long. The workers’ compensation court dismissed the cases, holding that the truck driver did not adequately prove legal and medical causation.

This case illustrates how difficult the causation standard is for pulmonary embolism cases that are not directly linked to a work injury. These types of cases will almost certainly require the assistance of a lawyer.

Safety, Workers’ Compensation Rights Are Concern in Many States

Posted on May 14, 2015 by Rod Rehm

Here is another sad round in the endless battle to preserve human rights against bigger profits.

On May 5, the Illinois House of Representatives met as the “committee as a whole” and heard testimony from an injured Oklahoma worker who had been devastated by cost- and benefit-cutting “reforms” similar to measures the governor of Illinois wants to impose on Illinois workers.

The article about this extraordinary event is important. One victim of losing long-held rights to compensation stood before a legislature of another state, educating them on what really happens to injured workers as a result of “reform.”

Fair workers’ compensation benefits are a fundamental human right. Human beings and their loved ones suffer with each takeaway, while CEOs are paid outrageous sums to increase profits. Injured Oklahoman John Coffell described exactly how he and his loved ones were affected.

“Coffell told the legislators that after injuring a disc in his back last summer, his pay dropped dramatically because Oklahoma had reduced the maximum wage-replacement benefits injured workers could receive from $801 a week to $561 a week.

“Almost immediately, he said, his utilities were cut off, his truck was repossessed and his family was evicted from their rental home. Because no relative could accommodate all of them, Coffell sent his three children, aged 5 to 9, to live with grandparents. He and his wife only had enough gas money to see them on weekends. They’ve had to rely on food stamps to get by.”

Because of his state’s workers’ compensation “reform,” Coffell’s children only got to see their parents on weekends.

Others who were affected by workers’ compensations in two different states – Illinois and Indiana – also painted the stark reality of how harsh a system can be at the hearing in Illinois. The contrast was obvious. “Laurie Summers — an Illinois nurse who dislocated her shoulder lifting a patient at a hospital in Indiana — said she had to drain her retirement savings and fight to get surgery.” But “Christine Fuller — who lived in Indiana, but whose father died from falling off a roof on a job in Illinois — said the survivor benefits she received from workers’ comp helped pay the mortgage and put her through college and graduate school.”

This testimony and hearing demonstrates that workers and their allies are gaining strength and finding new ways to fight the never-ending efforts to reduce costs, increase profits, and improve the business climate. These tactics frequently and all-to-often sacrifice workers’ safety and the safety net that is workers’ compensation.

This unusual event also shows that even though workers’ compensation programs are run at the state level, workers’ compensation “reforms” don’t happen in a vacuum. Businesses may tout the alleged advantages they get over other states by pushing these reforms through state legislatures. But a worker like Coffell from Oklahoma pushed back against the Illinois legislation, even though it didn’t directly affect him. He showed the struggle that a worker often has, regardless of the state where he or she was injured, to get workers’ compensation benefits, especially in states focused on “reform.”

“The ProPublica and NPR series has led to bills to raise benefits in Alabama and prevent medical care from being cut off in California. Officials have also warned insurers in California not to abuse the process and have launched an audit of how one insurer handled a claim in which a paraplegic’s home health care was terminated,” according to the recent ProPublica article about the Illinois hearing.

All concerned about the human rights of injured workers must keep working to find better, stronger and more effective ways to protect these human rights. Because a state’s business climate should not be more important than workers’ rights, safety and dignity.

State Laws Determine Worker’s Rights: Work Comp Benefits, Process Vary by State

Posted on November 17, 2014 by Todd Bennett

Many workers are hired in one state but are required to attend orientation or participate in a hiring process in another state because their potential employer is principally located and doing business there. Once they are hired and accept the job, they are then required to work in another state for various reasons. In these situations, many workers do not realize that a different state’s laws could apply to their workers’ compensation claim if they are injured in a state that is

different from where they were hired,
different than where they accepted the job,
different from where their employer is principally located or performing work, or
even different than where they currently live.

If you have been injured in another state, you may be eligible to have your workers’ compensation benefits determined by another state’s laws. This is important, as the benefits you could be entitled to are different in every state. In certain respects, the differences are significant in terms of the amount of weekly benefits, permanent benefits, or type and duration of medical care you may be able to receive.

The right to choose your family physician to treat you for your injury or the amount and duration of the disability benefits you may be entitled to are significantly different in every state. Let’s consider a few pairs of cities:

Omaha, Nebraska & Council Bluffs, Iowa
Sioux City, Nebraska & Sioux City, Iowa
Nebraska City, Nebrsaka & Harlan, Iowa

These cities in different in Iowa and Nebraska border each other, and a great number of residents from one are employed and work in the other. If you are injured in one state but live in another, and depending on where you were hired or where you were when you accepted the employment, you may have a Nebraska or Iowa workers’ compensation claim, or even both.

Nebraska

If your employment or your accident has any ties to the state of Nebraska, your employer is required to file a First Report of Injury with the Nebraska Workers’ Compensation Court. When this occurs, it is common for the Nebraska Workers’ Compensation Court to actually mail you a copy of your own First Report of Injury that was filed with the court by your employer. Just because a First Report of Injury was filed in Nebraska and just because the Nebraska Workers’ Compensation Court sends you a copy does not mean you are limited to Nebraska for the benefits that you may be entitled to.

Iowa

It is also normal for an insurance carrier of the employer to mail you a letter that says, “Your employment agreement, whether in writing or made in person, required your accident to fall under Iowa law,” or some other state’s law. Generally, no one has the right to decide for you which state your case can be determined in. It is a question of each state’s laws that determine where your claim can be processed.

Nebraska and Iowa

As a matter of general practice, if your accident occurred in that state, your claim and benefits can be determined based on that state’s laws. Other things like where your employer is principally located or where your employer regularly performs work can determine if you have a claim in each state. Further, your contract of hire or where you accepted the employment can also play a part, as well as where you were residing at the time of your accident in relation to where your employer was performing work, can also determine which state you may have a claim in.

These things, as well as what type of benefits each state allow, could make it possible for you to file in both states.

Time Periods to File in Each State

Each state has a certain time period in which to file a claim or action in the compensation court.

In Nebraska, you have two years from the date of accident OR two years from the date of any payment (weekly disability check, medical bill, mileage, prescription) in which to file an action in the compensation court.
In Iowa, a person has two years from the date of accident OR three years from the date of payment of a weekly disability benefit check in which to file an action in the compensation court.

Beware, however, that payment under one state’s laws may not save your claim in another state. For example, a payment under Iowa law will count toward a payment in Nebraska. However, a payment under Nebraska law will not count toward a payment under Iowa law.

Award, Order or Settlement Agreement for Benefits

It is important to note as well that an award, order or settlement can affect your right to file a claim in another state.

For example, if one obtains a Court Award, Order or Settlement in Nebraska, this would prevent you from obtaining any benefits in Iowa, if you had the option of pursuing benefits in both states.

On the other hand, if the same person obtained a Court Award, Order or Settlement in Iowa, a person could still pursue additional benefits in Nebraska that are different than what was provided in Iowa.

In both states, the insurance carrier would be entitled to a credit for what they paid in the other state, but you would still have the opportunity to pursue different and additional benefits in the other states, potentially.

Summary

The differences in law issues are often very complex. Whatever your situation is, if you think there might be any question as to which state’s laws apply to your case, you should speak to an experienced attorney who can advise you about the laws in each applicable state.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

Published by:

Tag Archives: Benefits

Workers’ Compensation Basics: Trials

Workers’ Compensation Basics: Payments to Workers and their Families

Benefits: Do You Use What You Get?

Is a Pulmonary Embolism Compensable under Workers’ Compensation?

Safety, Workers’ Compensation Rights Are Concern in Many States

State Laws Determine Worker’s Rights: Work Comp Benefits, Process Vary by State

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