Tag Archives: temporary disability

Ghosted by your workers’ comp. insurance company?

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The workers’ compensation insurance industry likes to talk about patient advocacy. But after a certain point in a claim, injured workers are often left hanging by insurance companies and the nurse case managers they hire to manage employee medical care.

Workers left in a lurch by insurers are often confused or ignorant about how to proceed in a claim. And surprise, surprise, insurers use this ignorance and confusion against injured workers.

Here are some common scenarios when injured workers get ghosted by insurers or nurse case managers in workers’ compensation claims.

Medical care

Employers have an affirmative and ongoing duty to offer medical care to injured workers. But what happens when a doctor, particularly, a surgeon states an employee is done with treating a work injury and employee is still in pain? Bluntly often this means that an employee stops getting treatment. But assuming an employee has the ability to get medical care outside of workers’ compensation, an employee still faces challenges.

If an employee seeks treatment for pain and that treatment is related to the injury, sometimes employers will argue that they don’t have to pay for that treatment. Nebraska Workers’ Compensation Court Rule 50 holds an employee is stuck with the doctor they chose at the beginning of the claim unless 1) the defendant denies medical care or 2) the parties agree to a change or 3) the court orders a change.

What constitutes a denial of care is a crucial question. Employers have an affirmative and ongoing duty to offer medical care to injured workers. The safest route for an employee is to ask the insurer to approve medical care. But that isn’t always possible if employees don’t have that information or adjusters don’t respond to inquiries. Insures also tend to ignore injured workers who don’t have a lawyer.

Arguably, not offering medical care is a denial of compensability, so an employee can chose to any provider doctor and have those bills paid. An ongoing and affirmative duty to offer care should mean an employer can’t get out of paying medical bills just because the stopped communicating with you about your claim. However, getting medical bills paid in that situation will probably involve hiring a lawyer and going to court. Many employees are intimidated by that process.

Why employers should offer you medical care

Employers have good reason to offer ongoing medical care. First of all, an injured worker can lose out on disability benefits if they decline medical care Neb. Rev. Stat 48-120(2)(c). By offering medical care, an employer can also maintain control over medical care. A recent case provides a good example of the protections that employers are entitled to if they offer medical care.

The Nebraska Supreme Court held in Rogers v. Jack’s Supper Club that an employer was not responsible for paying for bills incurred for treatment in Florida for an employee who moved from Nebraska to Florida. The court held so because the employee didn’t ask to formally change doctors from the court or the employer.

I think Jack’s Supper Club is a harsh result. I believe Neb. Rev. Stat. 48-120(6) gives judges broad latitude to order changes of doctors under Rule 50.  But in that case the defendant actually offered medical care to the injured employee. Arguably, the defendant in that case, met their affirmative duty to offer medical care and did not deny compensability.

Aren’t they supposed to pay me something?

While employers have a duty to offer you medical care for a work injury, their duty is less clear when it comes to paying permanent disability benefits. Again, insurers and nurse case managers tend to disappear after surgical care ends. Usually when a surgeon releases an injured worker from care they are deemed to be at maximum medical improvement or MMI.

I’ve written quite a bit about employers/insurers short change employees by ending payment of temporary disability and delaying payment of permanent disability. But that squeeze or delay presumes an employee actually gets paid permanent disability. In order to get paid disability for an injury to a specific body part, a doctor generally needs to give an impairment rating. But usually someone needs to ask for and pay for an impairment rating.

Often times insurance types just don’t ask for the impairment rating. Once they insurer gets an impairment rating, they have 30 days to pay the value of the impairment rating to an injured worker. But they don’t have a spelled out duty under Nebraska law to ask for an impairment rating the same way they have a duty to offer medical care.

I would argue the beneficent purpose of the Nebraska workers’ compensation act would give insurers a duty to ask for an impairment rating. But it might be up to the Unicameral to impose that duty on insurers.

Do I have an impairment rating for my injury?

If you had surgery, you almost certainly have an impairment rating. That impairment rating is likely worth at least a few thousand dollars of tax free money. If you have had surgery there is a reasonable possibility you will need some medical care in the future. Impairment ratings and future medical care cost insurance companies money. One reason that insurers and employers ghost injured workers is that they are hoping they won’t make additional claims or ask for payment of benefits that they are owed.

The offices of Rehm, Bennett, Moore & Rehm, 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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Three partial fixes for difficult workers’ compensation problems

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A lot of my blogging stems from my experience representing my clients in workers’ compensation cases. Last fall, I wrote a couple of posts: “Why so few workers get vocational rehabilitation in Nebraska” and “Why injured workers stop going to the doctor even if they are still in pain” after hard fought litigation had concluded.

I don’t know if it is apparent from the tone of those posts, but they were written from a sense of discouragement and disappointment. In both posts I wrote about the difficulties that injured workers have in receiving fair workers’ compensation benefits.

Law students, law professors and other legal analysts spot legal problems; trial lawyers need to find solutions for legal problems. After reading and reflecting, I’ve come up with three partial solutions for two major problems for injured workers in workers compensation cases.

None of these solutions are ideal or useful in every circumstance. These problems call out for pro-worker reforms to workers’ compensation laws, but even without “structural” solutions, lawyers for injured workers don’t just have to throw up their hands and tell their clients there is nothing they can do for them when faced with these difficulties.

Problems: The TTD/PPD gap.

Solution: Apply for unemployment.

I feel like I’ve written extensively about the problem of the long delay between when temporary benefits end and when permanent disability benefits start. Tara Reck in Washington state wrote a post about advising clients to apply for unemployment benefits in that situation. I kicked myself for not thinking of that before. (By the way, Washington cuts off temporary benefits after a vocational counselor determines an employee can return to work. That would significantly shorten the gap time.)

Applying for UI benefits in this situation is a good idea for a lot of reasons. One, Once a worker is at MMI, they are usually able and available for work. Two usually unemployment requires an extensive job search as a condition of receiving benefits. That job search can be evidence in a workers’ compensation case which can help prove up permanent disability. Evidence of a diligent job search by an injured worker usually also boosts credibility with a judge

Finally, a successful application for unemployment benefits means that an employee has steady income and maybe even finds a job. Having a steady income lessens the pressure on the injured worker to settle their workers’ compensation case.

Problem: The delay between the end of TTD and beginning of PPD

Solution:  Ask court to appoint counselor for LOEP with just FCE restrictions

Part of the delay between the end of temporary and start of permanent disability benefits is the difficulty in figuring out disability. Part of this delay can be explained by the practice of having a doctor ratify or sign off on functional capacity evaluation or FCE results obtained by a physical therapist. Doctor-endorsement of work restrictions is believed by some to be necessary for the appointment of a vocational counselor to perform a loss of earning power evaluation.

Physical therapists have an uncertain status as experts within the workers’ compensation court. But I was able to get a vocational counselor appointed with just FCE restrictions from a PT. (Feel free to contact me for a copy of the order) As a precaution, I did get the findings endorsed by a medical doctor. But I would encourage other plaintiff’s lawyers to push the issue with the trial courts in Nebraska. I believe trial judges are aware of the gap issue and are sympathetic to employees on the issue. With a concerted effort, the plaintiff’s bar in Nebraska may be able to reverse the custom of having a medical doctors endorse FCE restrictions from a physical therapist.

Problem: Future medical in a denied claim where the employee can’t afford future medical care.

Solution: Use company provided medical care

I wrote a post about why injured workers stop going to the doctor even if they are in pain. One of the main reasons why employees stop seeking care is cost. Another reason why employees stop seeking care is because employers manage medical of their injured workers and encourage doctors to release workers without recommendations for future medical care. This problem is particularly acute for employees of self-insured companies or quasi self-insureds with high deductible coverage.

But these self-insured employees usually often provide onsite occupational clinics. These providers are often on the front-line of discouraging claims. Many injured workers don’t seek treatment there because of that reason.

But those clinics are convenient and free of charge to employees who use them. They are a good way to bolster the case future medical if an employee is regularly seeking treatment there for work-related symptoms.  The fact that an injured worker continues to seek treatment at onsite clinic can also help their case by adding legitimacy to their testimony about the nature and extent of their limitations and symptoms from their work injury.

These occupational health notes are a discovery gold mine in my view. Not only do they give you what amounts to a free medical summary, they also document time off work which is incredibly helpful in proving entitlement to temporary disability benefits. The notes can also be a good source for admissions against interest by the employer.

The offices of Rehm, Bennett, Moore & Rehm, 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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How Nebraska law shortchanges injured workers

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Workers compensation is a defined benefit that pays certain benefits for work injuries regardless of fault. But when defined benefits aren’t well-defined, injured workers get short-changed when it comes to workers compensation disability benefits.

Underpayment of benefits is already baked into Nebraska workers’ compensation law for some workers. Nebraska usually does not take overtime pay into consideration when determining disability benefits. Nebraska also caps workers’ compensation benefits at a maximum rate.

Here is the how and why fuzzy math can lead injured workers can get underpaid benefits in Nebraska. I think you can break down the reasons that workers get underpaid into disputes over wage rates and the time periods they are entitled to benefits

Wage rate

Average weekly wage and abnormally low weeks

Permanent and temporary disability benefits are controlled by the average weekly wage under the Nebraska Workers Compensation Act. The average weekly wage is usually based on an average of the past 26 weeks of wages minus “abnormally low weeks”. What’s an abnormally low week? There isn’t a hard and fast rule. For the purposes of permanent disability Nebraska workers compensation law assumes a 40 hour work week. This assumption helps address underpayment issues for permanent disability.

But no such assumption exists for temporary disability under Nebraska workers compensation law. So insurers and claims administrators have wide latitude to underpay temporary benefits. This is particularly harmful as workers who are temporarily disabled are often entirety unable to work.

Shift differentials

Workers who work evening and overnight shifts often get paid shift differential on top of base pay. Particularly if a worker works a combination of day and evening shifts, workers compensation benefits tend not to account for shift differential.

Time Period

The gap between temporary and permanent disability

Nebraska law is unclear as to when temporary disability ends and when permanent disability ends. Not only does this mean injured workers can go months or weeks without benefits, it also means that workers can be underpaid benefits. Usually this underpayment is accomplished by shortening the period of temporary disability paid.

Neb. Rev. Stat. §48-119

Under Nebraska law, the first week of disability after a work injury is not compensated unless the disability lasts for more than six weeks. This tends to happen with injuries that don’t lead to quantifiable impairments. Sometimes, employees under pressure from employers, will be released to work too soon. Insurers and claims administrators view premature returns to work as an excuse to deny temporary disability because they employee is already at maximum medical improvement

The bottom line on underpayment of workers’ compensation benefits

If employees take these claims to court, they can often win back due benefits. These monetary amounts are meaningful for injured workers, but they may not always be cost-effective for an attorney to pursue.

In wage and hour cases under Nebraska and federal law successful claimants are awarded attorney fees that can be much greater than the lost wages collected. These fees encourage lawyers to take these cases.

But under Nebraska workers compensation law a successful claimant needs the court to find there was no reasonable controversy in law or fact for the court to award attorney fees and penalties under Neb. Rev. Stat. 48-125. This is a difficult standard. This difficult standard is made more difficult over disputes over average weekly wage because average weekly wage is a question of law and fact.

In short, Nebraska workers compensation law gives insurers and claims administrators wide latitude to underpay injured workers. But since under Nebraska law it is very difficult to win attorney fees in under Nebraska law, insurers and claims administrators have little to fear in the way of penalties and attorney fees if a court rules they underpaid benefits to an injured worker.

The offices of Rehm, Bennett, Moore & Rehm, 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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Nebraska comp. court rule changes could help physician-owned hospitals

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Lincoln Surgical Hospital (above) could benefit from recent changes to NWCC rules on doctor referral

While Judges debated and rejected changes to rules about expert testimony in the Nebraska Workers’ Compensation Court, there was little discussion about a change to court rules allowing for a controversial practice among doctors.

At last month’s public meeting of the Nebraska Workers’ Compensation court, the court unanimously passed a change to NWCC Rule 50 that allowed doctors to refer to facilities where the doctors have an ownership interest.

 Supporters of so-called “physician-owned” hospitals many of which are surgical hospitals, argue that that these facilities provide services at a much lower costs than hospitals. A recent article in The Wall Street Journal detailed how hospital systems can inflate the costs of medical care by limiting referrals of primary care doctors employed by them.  Medical costs comprise roughly 60 percent of total workers’ compensation costs. Not surprisingly insurers like doctor-owned hospitals because of the lower costs.

But physician-owned hospitals can’t take Medicare or Medicaid due to changes brought about by the ACA. Hospitals argue that physician owned hospitals shift the cost of poorer and unhealthier patients on to them which is why the ACA disfavored physician-owned hospitals.

Essentially the change to NWCC Rule 50 was a victory for insurers and doctors over hospitals. Since the early 1980s medical expenses have taken up an increasing share of workers’ compensation expenses — now comprising 60 percent of the total expense. If the change to Rule 50 does lead to lower medical costs for the same level of service, then it should be helpful to injured workers because there will be less pressure to reduce benefit levels through legislation.

These legislatively mandated reductions in benefits usually mean worker receiving less compensation for permanent and temporary disability. Reductions in disability for compensation for injured workers has recently been cloaked in legislation adopting the American Medical Association Guide to Permanent Impairment, 6th Edition which has been the subject of many state-level constiutional challenges  from plaintiff’s lawyers.

 

The offices of Rehm, Bennett, Moore & Rehm, 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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What’s new for 2019 in Nebraska workers compensation?

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The beginning of the year usually sees rule and benefit changes in the Nebraska Workers’ Compensation Court. 2019 will be no different. The maximum rate for disability benefits will increase to $855 to $831. Mileage reimbursement for medical visits and vocational rehabilitation will increase to $.58 per mile from $.545 per mile.

While annual increases in the maximum benefit rate are routine in Nebraska, it is not routine in all states. The annual increase in the maximum benefit rate ensures that compensation stays adequate from both a practical and constitutional perspective.

The minimum benefit remains unchanged at $49.00 per week. That amount has not changed since 1973. That  low amount can particularly harm a worker who suffers a serious injury on a second job or part-time job — like a holiday job — if the work injury keeps them from doing a full-time job.

The mileage rate increase might also seem humdrum, but it is common for injured workers in Nebraska to travel relatively long distances to seek care from specialists. An increase in mileage reimbursement of $.035 per mile means another $7 for injured worker who makes a 200-mile roundtrip for medical treatment which is not uncommon in Nebraska.

The Nebraska Workers’ Compensation Court also approved various procedural changes at their meeting on December 20th.

Rule 2 Rule 2 regulates filing in the Nebraska Workers’ Compensation Court. Changes to the filing rules mandate the use of registration for the E-File system through Nebraska.gov. Additionally, the court will formally allow pleadings filed by 11:59:59 p.m. central time to be deemed to be filed that day rather than waiting for formal business hours to get a document file stamped. Appeals can now also be filed electronically.

Rule 47 – The change to Rule 47 provides that more detailed information about third-party cases be provided to the court in settlements that require court approval. The court doesn’t have jurisdiction to determine third-party liability but it does have some interest in repayment or subrogation interests under the theory that subrogation interests ensure that medical providers are adequately paid. Case law also provides that protection of a employer/insurers subrogation interest effectuates the beneficent purpose of the act.

Rule 50 – The court ended its prohibition of doctors referring patients to clinics where they have an ownership interest. This rule changes allows for doctors to refer to physican-owned specialty hospitals. These hospitals can perfrom procedures at a lower cost, but the ACA prohibited such facilites from taking Medicare and Medicaid. 

The court also adopted a new fee schedule dictating how providers are paid for treating work injuries. You can read about here as to why that is significant here. The court also rejected a change to NWCC Rule 10 prompted by a recent Nebraska Supreme Court decision that you can read about here.

The offices of Rehm, Bennett, Moore & Rehm, 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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What’s your workers’ compensation case worth? What’s your average weekly wage?

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AWW: One variable in determining what a case is worth

In Nebraska, you are entitled to 2/3 of your average weekly wages when you are off work for a workers’ compensation injury. You may also be entitled to permanent disability based on 2/3 of your average weekly wage as well. But what does “average weekly wage” mean and how do you calculate it?  

How to calculate Average Weekly Wage (AWW)

Generally speaking, the AWW of a work comp claim in Nebraska are calculated based on a workers’ wages in the 26 weeks before the date of the accident. If the injured worker has not been there for 26 weeks, often the AWW would be based on the number of weeks the worker has actually worked. In rare instances (e.g. if someone is injured within the first few days on the job), the AWW might actually be calculated by using other employees in a similar job as the injured worker.

Tips are normally included in the AWW. Commissions or bonuses are also likely included if they were fixed at the time of hiring. Alternatively, other benefits, such as health insurance or room and board are usually not included in the AWW calculation, with the exception that the room and board potentially could be included if the money value of the room and board was fixed at the time of the hiring.

Abnormally low weeks from the 26-week-period may also be excluded in the calculation, as not to artificially drive down the true average earnings. Overtime hours are also included in the AWW, but it may only be calculated as “straight time” and not at premium pay. For example, someone making $20 per hour who works 45 hours per week, would only be entitled to 45 x 20 = $900 AWW (and not time-and-a-half for the 5 extra hours of overtime). The workers’ compensation rate in this example (for temporary and permanent benefits) would then be $900 x 2/3 = $600.

The offices of Rehm, Bennett, Moore & Rehm, 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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Caught in the TTD/PPD squeeze

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Consider these common scenarios after a serious work injury.

An injured employee is done recovering from a surgery but can’t go back to work until they complete a Functional Capacity Evaluation.

An injured employee is done recovering from a spinal fusion surgery and is unable to go back to their old job. Even if on the odd chance they could go back to their old job, they have been off work so long that any job protections available under the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) have long passed.

In both cases an injured worker is likely 1) not getting temporary total disability (TTD) 2) Is not earning wages and 3) Has not started receiving any permanent partial disability (PPD) or permanent total disability (PTD).

Some call it “the gap”, some call it “the squeeze”, but whatever you call it, it’s a painful situation to be in to not have any money coming in after a recovery from an injury.

Workers’ compensation laws in Nebraska are supposed to be interpreted in favor of the employee to effectuate the beneficent purpose of relieving employees of the economic effects of a work injury. How can employers/insurers squeeze injured employees like this?

One answer is that case law may allow this. I am going to cut and paste in the relevant language case law into this blog post in italics. I am going to bold face the language insurers rely on to squeeze injured employees.

Temporary disability ordinarily continues until the claimant is restored so far as the permanent character of his or her injuries will permit. Compensation for temporary disability ceases as soon as the extent of the claimant’s permanent disability is ascertained. In other words, temporary disability should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.

The term “maximum medical improvement,” or MMI, has been used to describe the point of transition from temporary to permanent disability.  Once a worker has reached MMI from a disabling injury and the worker’s permanent disability and concomitant decreased earning capacity have been determined, an award of permanent disability is appropriate.

The argument underlying the squeeze is that TTD ends when a doctor states you have plateaued medically, but you can’t get permanent disability until your disability has been ascertained. 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. As Roger Moore at our office pointed out in 2015, the latter process can last months.

I think allowing insurers to exploit the gap between TTD and PPD is an incorrect reading of the law. As I pointed out earlier, it doesn’t effectuate the beneficent purpose of the Nebraska Workers’ Compensation Act. If TTD ends when disability is ascertained, doesn’t disability actually need to be ascertained through assigning either permanent impairment or permanent restrictions and/or a determination of loss of earning power before TTD payments end? Finally, if MMI signals the transition between temporary and permanent disability benefits, isn’t MMI merely the beginning of the end of temporary benefits rather than the end of temporary benefits? Doesn’t the term “transition” account for some time period when disability is being ascertained?

The temporary/permanent squeeze is an issue of great interest to me. While I think the squeeze is a misreading of the law, I am not certain a trial judge or appellate court would see things my way. The issue may have to be resolved in the Legislature, but the issue is one that should be addressed in litigation. I am one attorney who is willing to litigate the issue on behalf of an injured employee.

The offices of Rehm, Bennett, Moore & Rehm, 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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Irregular shifts complicate workers’ compensation claims

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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 & Rehm, 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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