Tag Archives: temporary disability

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, 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 It Hurt My Workers’ Compensation Case to Get a Job?

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accommodations“Will getting a job hurt my case?”

I hear this question on a regular basis from my workers’ compensation clients. In my experience, the answer is almost always “no.” But if you do find alternate or part-time employment during your workers’ compensation case, you need to keep track of and disclose your earnings.

Why working when you are injured can help your case:

  1. Working helps your credibility with doctors and judges:
    Doctors and judges are the two most important people in your case, because the doctors drive the medical evidence and the judge weighs that evidence. Ultimately, those decisions come down to a doctor or judge’s determination of your character. A judge is going to give the benefit of the doubt to someone who is trying to help themselves. That’s also why complying with doctor’s orders and rehabilitation programs helps your credibility in court.
  2. Just because you’re working doesn’t mean that you are not significantly or even totally disabled:
    Maybe your company is bending over backward to keep you. Maybe a sibling or a parent has you working at their business. In situations like that, a court is going to understand you are earning wages beyond your real potential to earn wages. You may also be enduring tremendous amounts of pain to maintain employment. In cases like that, especially if you had a good employment record and complied with your doctor’s orders, the fact that you are working through pain could very well help your credibility.

How to hurt your case when you work:

  1. Not disclosing your wages and employment:
    This is especially true if you are working while receiving temporary disability benefits or unemployment benefits. This makes you look dishonest, and you might be committing fraud in many states. Additionally, once you are in the legal process, you normally have a duty to disclose that information to your employer/insurer anyway. Even if a judge believes that you inadvertently forgot to turn over this wage information, you are still making it more difficult for your attorney to win you benefits.
  2. Clearly working beyond your medical restrictions:
    Let’s say a doctor takes you off work as a nurse because you can’t lift more than 25 pounds and bend and twist on a regular basis, but you keep working as a CrossFit instructor, where you regularly do heavy lifting that involves bending and twisting. If you are that person, don’t call our law firm. Though employee fraud is a very small percentage of overall fraud, conduct like that would likely be workers’ compensation fraud. Again, working can help with your credibility in a workers’ compensation case, but being dishonest about that work can hurt your case.

If you have questions about specifics in your or a loved one’s workers’ compensation case, please contact an experienced workers’ compensation 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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