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.
Our firm strongly supports this new bill. Roger Moore wrote a good post in 2015 about the human cost of the temporary-permanent squeeze. Last year I wrote a post about how the squeeze came about through case law.
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 6th may undercompensate injured workers and be less likely to address the gap issue.
Our firm encourages our clients and others in Nebraska to contact their state senators and tell them to support LB 526. You can find out who your state senator is here and find their contact information here.