Tag Archives: subrogation

Claiming workers’ comp, when short-term disability has paid for time off because of a work injury

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A few days ago I wrote “Five reasons why office workers don’t file workers’ comp, claims for hand and wrist claims.” One of those reasons is that I think many employees use private health insurance and short-term disability to pay the cost of work injuries rather than workers’ compensation.

To understand why this hurts workers, it helps to understand the difference between workers’ compensation, short-ter, disability and private health insurance.

The difference between workers’ compensation, short-term disability and private health insurance.

With a few small exceptions, workers’ compensation is mandatory for all employers in Nebraska. Workers’ compensation includes payment for wage loss, permanent disability and medical benefits that are standard for all employers. Employers bear the cost of workers’ compensation. Finally, employees, at least in Nebraska, pay nothing for medical care under workers’ compensation. But workers’ compensation only covers expenses related to work injuries.

In contrast, private disability insurance is not required. Private disability covers income loss for occupational as well as non-occupational conditions. While health insurance coverage is mandatory for larger employers, there is a lot of variation among insurance plans. More importantly, employees generally have to foot some of the cost of private disability and health insurance coverage. Finally, under private health insurance, an employee has out of pocket expenses in the forms of co-pays and deductibles.

The seeming advantage of putting an injury on private insurance and short-term disability is convenience. Additionally, short-term disability policies sometimes pay 80 percent of lost income while workers’ compensation insurance only pays 2/3rds. Additionally, workers’ compensation benefits can undercompensate some highly paid employees.

But on closer examination, workers’ compensation is a better deal most of the time. First of all, workers’ compensation benefits are generally not taxed while short-term disability benefits are more likely to be taxed. Under workers’ compensation an employee doesn’t have to pay out of pocket for medical expenses. Out of pocket expenses for even a simple procedure covered by insurance can range into the thousands of dollars.

Workers’ compensation pays for permanent disability for hand and wrist injuries on an impairment basis for single member claims. This means the employee gets paid something if they have damage to their body, even if they can return back to their job full duty. Long-term disability policies tend not to pay out unless an employee is unable to work.

Claiming workers’ compensation after short-term disability and health insurance pay for the costs of surgery – This is permissible and is often a smart financial move for an injured worker, but attorney involvement is usually needed. In cases where an employer is forced to pay medical bills through workers’ compensation and that the client and their health insurer originally paid, the client and health insurer get reimbursed by the doctor. Out of pocket expenses are eliminated and can be paid to the employee by the provider.

In some such cases employees can get a refund from their private health insurer through the so-called the so-called common fund doctrine if the health insurer gets paid back from a workers’ compensation claim.

Employees pursuing a workers’ compensation claim when short-term disability paid can also end up ahead financially. An employee can be paid permanent disability benefits for a wrist or hand injury even if the employee is able to return back to work and has little if any functional restrictions.

But health insurers and disability insurers will attempt to claim repayment or subrogation rights under a federal law known as Employee Retirement Income Security Act (ERISA) which regulates some disability and insurance plans. ERISA is a powerful tool for insurers, but it doesn’t apply to a broad class of employers including church-affiliated employers and state and local governments.

It’s important than an attorney can get a look at the insurance plan to determine if ERISA even applies. Employees have some leverage in the way of civil fines against an insurer or employer if the plan administrator fails to provide the plan. ERISA laws generally pre-empt or overrule state laws, but since workers’ compensation laws generally regulate the business of insurance, there is an argument that ERISA may not preempt those laws. Additionally, Nebraska has a law against assignment of benefits which could help limit or eliminate repayment rights. So, in short. a lawyer has ways to push back against a private disability insurer and or health insurer claiming an ERISA lien when resolving a workers’ compensation case.

Workers’ compensation cases where private health insurance and or private disability have paid are also, for lack of a better word, messy. Part of that messiness usually involves some dispute over whether an injury was work-related. In those cases, an attorney can help negotiate unpaid medicals bills and any other repayment rights from a private disability or health insurer. Again, the result of this work is that an injured worker emerges from a work injury in better financial condition than they would have without a lawyer.

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.

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Will Medicare beneficiaries see faster settlements?

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“How much will my case settle for ?” and “When will I get my settlement?” are two of the biggest questions asked by clients in a workers’ compensation or personal injury case. Medicare beneficiaries will soon better know the answers to these questions.

As of April 1, the Centers for Medicare and Medicaid Services will allow conditional payments to be made electronically. The change to an electronic payment system will allow all authorized users to view the updated demand status of CMS and track electronic payments in the “Electronic Payment History” tab.

This change should allow Medicare beneficiaries who have a workers’ compensation or personal injury claim to have their cases settle sooner and receive their settlement proceeds sooner.

A Medicare conditional payment is a payment made by Medicare in a disputed workers’ compensation or personal injury case. In a conditional payment situation Medicare will pay on a medical expense but demand that they be paid back from the proceeds of a settlement or judgment.

In substance a conditional payment issues is like any other subrogation issue where some form of health insurance pays for an injury that should be covered under workers’ compensation or a liability policy. In all cases, the plaintiff needs to know how much can be repaid so they can settle a claim and know what they might receive in a settlement.

In a Nebraska workers’ compensation case, under Neb. Rev. Stat. 48-120(8),a judge can order that a third-party who paid for medical care that was related to be a work injury be reimbursed for payments made on behalf of an injured worker.

The problem with Medicare is that the conditional payment process is often more burdensome than determining a subrogation or repayment interest from other types of insurers – it often takes longer as well. Hopefully electronic payment and tracking of payments will simplify and speed up settlements involving Medicare beneficiaries.

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 Medicare, Nebraska, subrogation, Workers Compensation and tagged , , , , .

Three “mega” issues with “mega” claims

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An increase in driving jobs and use of mobile devices has lead to more “mega” workers’ compensation claims.

The cost of workers compensation insurance and the total number of work injuries has been in a long-term decline as industrial jobs decrease and service jobs increase.

But even as overall claims and costs decline, the workers’ compensation insurance industry is focusing on higher value “mega”  claims involving serious or fatal injuries. These claims often involve auto accidents which are made more prevalent by the 1) increase in delivery jobs through online commerce and 2) the expansion of mobile technologies that turn vehicle into mobile offices. (I drafted the first two paragraphs of this post on my IPhone in my car at a car wash)

The increased focus on so-called mega claims will likely bring increased attention to litigation over 1) when an injury arises out of and in the course and scope of employment 2) employee fault and so-called safety violations and 3) fights over how much an insurer/employer should be paid back when they paid workers’ compensation benefits for an injury that was the fault of a third-party. In legalese, this is called a subrogation interest.

Arising out and in the course and scope of employment

For an injury to be covered by workers’ compensation, it has to take place within the time and spatial boundaries of work and the injury has to be caused by a risk related to employment. At least under Nebraska law, the issue depends on the facts of the case. The Nebraska Court of Appeals recently heard oral arguments in a workers’ compensation case involving the survivor of a sheriff’s deputy who was killed in a car accident on his way home from work.

Normally such work would not be covered under workers compensation under the so-called going and coming rule. But in this case the sheriff’s deputy was talking to another deputy who was covering the next shift about a work-related event when accident occurred. The family of the employee argued that since the employee was talking on their cell phone about work with a coworker when the accident happened, that the accident should be covered by workers compensation. In that case the trial court disagreed.

I agree with the family.  Mobile technology is changing the scope of what constitutes the workplace. It also changes expectations for when an employee is expected to be working. Covering employees injured offsite and/or off the clock while using mobile technology by workers compensation adapts workers compensation to a modern workplace.

Safety violations

Using mobile devices in moving vehicles poses safety risks. Employers have the discretion to make reasonable safety rules. In some cases, violation of a safety rule gives employers to paying workers compensation in Nebraska. Many other states have similar rules. In a recent Virginia case, serious injuries to a bus driver injured in a motor vehicle accident were found not to be covered by workers’ compensation because the driver was violating an employer rule requiring that he wear a seat belt. A death or serious caused by a worker who was texting or emailing while driving in violation of company rules on would be vulnerable to being dismissed in Nebraska.

Third Party cases

Many cases involving auto accidents on the job involve the negligence of a third party that is neither the fault of the employee or employer. In such a case, the employer has a right to be paid back for workers’ compensation benefits out of any recovery from that third party minus some attorney fee. This is called a subrogation interest. Nebraska law allows a court to equitably determine the amount of the subrogation interest.

But Nebraska courts have taken a view of equitable subrogation in third party cases that is favorable to employers. The fact that an employer deceased the value of the personal injury case by aggressive defense of the workers’ compensation claim  does not given courts the authority to reduce an employer’s subrogation interest. Nebraska courts have also held that giving employers robust repayment rights in third party cases effects the purpose of the workers compensation act because it encourages the prompt payment of benefits.

 

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 , , , , , .