Tag Archives: Temporary Total Disability

No, you don’t need to burn your PTO to get workers’ compensation benefits.

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Employees do not need to exhaust paid time off (PTO) to receive workers’ compensation benefits in Nebraska. Employers in Nebraska must carry workers’ compensation insurance. But in Nebraska, employers aren’t required to pay PTO. Workers compensation pays out benefits whether you have paid leave or whether you have health insurance.

If you injure yourself at work and someone in management or HR tells you that you need to exhaust your paid leave before you collect workers’ compensation benefits, one of three things might be happening.

1. Someone at your company is misinformed about workers’ compensation.

2. Your employer is misleading you about how workers’ compensation works.

3. Maybe you misunderstood what you were told.

So why do some people think you need to exhaust paid leave before you receive workers’ compensation?

Short-term disability and exhaustion of leave

Many short-term disability policies require that employees exhaust paid leave before claiming short-term disability. My wife was required to burn her paid time off in order claim short-term disability during her maternity leave. White collar employers tend to have more short-term disability claims than workers compensation claims. (They tend to shift work injuries on to short and long-term disability, but that’s another story.) So a white collar HR department that lacks knowledge of workers compensation may, wrongly, assume that injured workers need to exhaust paid leave before receiving workers’ compensation.

The stigma of workers’ compensation

Employers who believe that employees need to burn paid time off before workers’ compensation benefits, may also believe this is necessary because they believe it should be necessary. Burning your paid time off before receiving workers’ compensation would be the same as paying a deductible before health insurance pays. Employers who think PTO should serve as a workers’ compensation deductible may believe that workers’ compensation and workers’ compensation claimants are illegitimate. Forcing employees to burn PTO before receiving workers’ compensation is one way to “hold employees accountable.”

Paying a quasi-deductible to receive workers’ compensation benefits is the cornerstone of a portable benefits scheme dreamed up by Obamacare architect Jonathan Gruber. (Portable benefits are touted as a replacement for workers’ compensation —- particularly for gig economy workers. Bad portable plans shift the cost of work injuries onto injured workers.)

Misinformed or mislead: A distinction without a difference

I know some high-injury employers actively misinform employees about workers’ compensation. These employers may tell injured workers they need to use paid time off before they can collect workers’ compensation to discourage injured employees from taking time away from work. Employees may work through pain to avoid missing work and losing out on paid family leave and or paid vacation time.

Employee misunderstanding

Nebraska law requires a one-week delay period before an injured worker who is off work can collect temporary disability. If disability lasts longer than six weeks, the employer must pay that first week. . Some employees may take this statement to mean that they need to exhaust their paid leave or PTO to receive workers’ compensation. Many employees don’t want to take the chance of missing out on a week of pay Bluntly many employees may need to draw paid leave or PTO while they are waiting for workers’ compensation benefits to start.

Can you collect workers’ compensation for times you took PTO in Nebraska? Yes you can.

The Nebraska Court of Appeals ruled in Godsey v. Casey’s General Stores that an employee can collect temporary total disability for periods when they took PTO. The court reasoned that since paid leave was a benefit ready earned by the injured worker that an injured worker could collect workers compensation and PTO.

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 to get paid regular wages for missing work due to a medical visit in a workers’ compensation case

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Can an injured worker claim their regular pay if they go to a medical appointment as part of their workers compensation claim? The answer is yes. But like most legal questions there are always qualifications.

Why you can get paid wages for workers’ compensation medical visits
First, per the Fair Labor Standards Act (FLSA) and federal regulation 29 CFR 785.43, getting paid for time spent going to a doctor applies when the employee seeks treatment on site or during regular work hours. An employee might have a harder time claiming pay if they are forced to seek medical treatment during non-work hours. But I believe it would be a close and interesting legal issue if time spent going to employer-compelled medical treatment during non-work hours would be covered under the FLSA.

Secondly, per case law, it seems like that medical treatment would need to be expressly authorized and set up by the employer.  It might be more difficult for an employee to get paid their wages while taking time off of work for medical treatment in a disputed workers’ compensation case.

Another complication may be if an employee takes paid leave to attend an employer-ordered medical appointment. Arguably since paid leave or paid time off isn’t mandated by law it might be difficult to bring a claim under the FLSA for the forced taking of paid leave. State wage and hour laws like the Nebraska Wage Payment and Collection Act may provide a remedy.

Why wage and hour law can be better than workers’ compensation claims when it comes to wage payment issues

So why would an injured worker want to claim unpaid wages instead of temporary disability? Several reasons, in Nebraska temporary total disability pays two-thirds of your pay and temporary partial disability pays two-thirds the difference between reduced hours and your average weekly wage. But under wage and hour law, a workers can claim their full wages for time spent going to certain medical visits as part of their workers’ compensation claim.

In Nebraska, overtime pay is not taken into account in determining workers compensation benefits. But under the Fair Labor Standards Act an employee can claim overtime pay. The Nebraska Workers compensation act also caps benefit rates at $882 per week. There is no cap to hourly pay under the FLSA.

Nebraska also has a one week waiting period for benefits. In injuries where disability lasts less than six weeks, that first week of disability isn’t paid. There is no waiting period for unpaid wages under the FLSA.

I’ve written about how the Nebraska workers’ compensation act has weak attorney fee and penalty provisions that make it easy for employers to shortchange employees when it comes to workers compensation disability benefit payments. In contrast the FLSA has strong attorney fee and penalty provisions that make it more attractive to bring claims for smaller amounts. Smaller FLSA claims can also be combined into collective action claims.  The Nebraska Workers’ Compensation Act, like most of other workers’ compensation laws, does not allow for collective or class action cases.

The only disadvantage of getting wages over workers’ compensation benefits is wages are taxable while workers compensation benefits are not taxable.

How an employee can bring a wage claim for time spent going to the doctor for workers’ compensation case.

The most important part of a wage and hour case for a worker is being able to precisely prove lost time. This should be simple for injured workers as medical visits usually only take place a few times a week at the most. Many injured workers keep track of mileage already as mileage benefits are part of medical benefits under workers’ compensation in Nebraska. If you can keep track of mileage, you can also keep track of time spent going to medical appointments. If an injured worker turns in mileage to their attorney or workers compensation claims department, there is no reason they can’t turn over claims for unpaid wages to Human Resources directly or through their attorneys.

Anti-retaliation provisions

Retaliation is always a concern of workers who exercise their rights at work. Fortunately, the FLSA makes it unlawful for an employer to retaliate against an employee for exercising their rights under the law. Nebraska and most other states prohibit employers from retaliating against workers who file workers compensation as well.

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 happens when an employee needs family leave after a work injury?

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Taking leave to care for a family member can be complicated by a work injury

Work injuries create all sorts of unexpected complications for injured worker. One complication is what happens when an injured employee on alternate or light duty needs to take time away from work for a family emergency.

If the employee has been employed with the same employer for a year, worked more than 1250 hours during that year and the employer has more than 50 employees within a 75 mile radius, then the employee could take leave for up to 12 weeks under the Family Medical Leave Act without worrying about losing their job.

If the employee or employer is not covered by the Family Medical Leave Act, then things can get sticky for an injured worker as the employer is not obligated to provide unpaid family leave. In Nebraska, an employer is still obligated to pay temporary disability regardless of whether an employee is fired or quit.  But employers, especially ones that are self-insured for workers’ compensation, ignore the law which means that an employee has to wait for a hearing to get temporary disability benefits paid. There may also be a question as to whether an employer’s ability to accommodate a work injury but for a termination or quit should factor into how much an employee should get paid for temporary disability.

Although I haven’t encountered this issue, I suspect an FMLA eligibile employee who took family leave while on light duty could have an employer deny payment of temporary disability. Ultimately I believe a court would award temporary disability in that circumstance. In other words, the analysis for the purpsoses of workers’ compensation benefits would be the same even if the new employee has less job protections for taking family leave.

Short-term employees are already more vulnerable to injuries. Short-term employees also targeted for termination under policies that fire new employees for having “lost time” or “recordable” accidents. While you can, and I have, argued successfully those types of policies retaliate against new workers who get hurt at work, you can’t make the same argument about new employees who get fired for taking family leave. The law excludes new employees from the protections of the Family Medical Leave Act. The law allows employees to discriminate against new employees who need family leave. That’s not to say than a new employee who gets fired after taking leave can’t even have a wrongful termination case, but there would have to evidence of some unlawful motives for an employee to bring that case.

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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Can I Collect Unemployment and Workers’ Compensation Benefits at the Same Time?

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In Nebraska, an injured worker who is laid off, fired or leaves a job for good cause can collect unemployment benefits and still receive Temporary Partial Disability (TPD) benefits and Permanent Partial Disability (PPD) benefits from the workers’ compensation insurance company. The Nebraska Labor Department unemployment law does not allow a worker to receive unemployment during the same week the person is paid Temporary Total Disability (TTD) workers’ compensation payments.

To receive unemployment benefits, the injured worker must be ready, willing and able to work.  As long as injured worker is ready, willing and able to work within one’s own restrictions, that worker can receive unemployment benefits during the same week that they are entitled to TPD and PPD benefits. 

If a person is totally unable to work and getting TTD benefits, that person cannot receive unemployment benefits since they, by definition, are not ready, willing and able to work.

Under the workers’ compensation laws, it is also important to remember that compensation benefits cannot be offset with what is paid under the unemployment benefits. For guidance, please refer to Nebraska Statute 48-130 that supports this rule of law.

If you have been laid off or terminated, you are still entitled to workers’ compensation benefits in the above situations.

If you have any questions, call us for a free consultation.

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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Workers’ Compensation Basics: Payments to Workers and their Families

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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: 

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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Intoxication, Work, And Workers’ Compensation Don’t Mix

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Today’s post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm in Iowa. For Nebraska, I would note that the law is slightly different, but similar, in this sort of a situation regarding workers’ compensation and intoxication.

Most of us know that, for both professional reasons and in the interest of safety, remaining sober while on the job is essential. However, it is important to also recognize that workers who are intoxicated at the time that they sustain a work injury stand a far lower chance of ever collecting workers’ compensation.

If the blood test shows the presence of alcohol or drugs, odds that the employee will be able to collect workers’ compensation are much lower.

This is because of the intoxication defense: if an employer can prove that intoxication was the cause of the workers’ injury, then they employer is not required to provide workers’ comp for that injury.

Now, there are some notable Continue reading

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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Don’t Get Short-Changed On Your Work Comp Disability Payments

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Home from work due to a serious injury? Make sure you get your due TTD benefits.

In Nebraska, workers’ compensation law entitles you to 2/3 of your average wages when you are off work because of an injury. This average is based on your wages the 26 weeks before you were injured. This is known as temporary total disability (TTD).

How TTD Works:

If you are an injured at work, you are entitled to TTD so long as you are under a doctor’s care, that doctor has you on work restrictions preventing you from working, and your doctor has not placed you at maximum healing for your injury.

While off work for your injury, make sure you are getting the proper amount of money you are entitled to. Employers use many techniques to manipulate your wages to pay you less than you are legally entitled to.

Improper ways your Employer “miscalculates” your average wages to pay you less:

  1. Including weeks you worked minimal hours, short weeks, Continue reading
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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