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.
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.