Tag Archives: workers compensation

How Nebraska law shortchanges injured workers

Posted on by

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.

This entry was posted in Nebraska. workers' compensation, Workers' Compensation. Workplace Injury and tagged , , , .

Millennials suffer most work injuries in Nebraska

Posted on by

Nearly 2/3 of reported work injuries in Nebraska are workers under 40

Workers under the age of 40 comprise 65.7 percent of reported work injuries in the state of Nebraska according to recently released statistics by the Nebraska Workers’ Compensation Court.

Put another way, Millennials are the generation that suffer the most work injuries in this state. Viewed one way, the fact that so many young people get hurt on the job belies the assumption that young people are lazy or soft. Much like the misconception that all blue collar workers are white, there is an assumption that young people don’t do blue collar work.

But viewed another way, negative stereotypes about millennials  jibe with perception held by many that injured workers are just trying to get out of work or “milk the system”. In that mindset, millennial employees would be more likely to claim workers compensation because workers’ compensation claims are almost per se fraudulent.

In Nebraska and most states injured employees have some protection against discrimination if they file a workers’ compensation claim. (Although it is a close issue as to whether an injured worker is a member of a protected class or engaging in a protected activity or both) But workers under the age of 40 in Nebraska and in most other states have no protection against discrimination based on age.

The fact that stereotyping young people is legally permissible means that respectable business types have no problem with sharing humor like the “Millennial Job Interview” video that made the rounds on the internet. I doubt that any video that  sterotyped a protected class like this video stereotyped millenials would have openly shared without rebuke.

I suspect allowing discrimination against young people negatively impacts terms and conditions of employment for young people. Lawmakers in Canada, where age discrimination laws generally kick in at age 18, seem to think it does. I also wonder whether negative stereotypes about millennials would lead employers to discount safety complaints from younger workers or lead them to believe that younger workers exaggerate the extent of their injuries.

Stereotypes about lazy young people aren’t new to millennials. Future generations including, Generation Z , will likely be subject to negative stereotyping. Human nature may not change, but laws controlling discrimination may force employees to change their behavior. Laws outlawing age discrimination against young people may also promote workplace safety as young people suffer the bulk of work injuries.

At least one millennial in Nebraska will have an opportunity to shape workplace law in Nebraska. Lincoln Senator Matt Hansen was elected to chair the Business and Labor Committee in the Nebraska legislature. Hansen has a good record on workers issues and I believe he will work hard to preserve and maybe even expand employee rights in Nebraska in this important position.

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.

This entry was posted in Nebraska, Workers Compensation and tagged , , , .