NEBRASKA WORKERS' COMPENSATION CLAIM HANDLING GUIDELINES
- 1 DEFINITIONS
- 2 EXCLUSIVE REMEDY
- 3 JURISDICTION AND LIMITATIONS OF ACTIONS
- 4 COMPENSABILITY
5 INJURIES, EXCLUSIONS AND DEFENSES
- 5.1 “Arising Out of” and “In the Course of” Employment
- 5.2 Special Circumstances
- 5.3 Intentionally Self-Inflicted Injury or Death
- 5.4 Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs
- 6.1 Calculation of Average Weekly Wage
- 6.2 Temporary Disability
- 6.3 Temporary Partial Disability
- 6.4 Permanent Disability
- 6.5 Additional considerations
- 6.6 Death Benefits
- 6.7 Vocational Rehabilitation
- 6.8 Penalties
- 6.9 Attorney’s Fees
- 6.10 Interest and Costs
- 6.11 Medical Benefits
- 7 SUBROGATION / CREDIT
- 8 ATTORNEYS
- 9 CLAIMS PROFESSIONALS
- 10 LITIGATION AND APPEAL
- 11 SETTLEMENT
- 12 INSURANCE
“The following shall constitute employers subject to the Nebraska Workers' Compensation Act:
1. The state and every governmental agency created by it; and
2. every person, firm, or corporation, including any public service corporation, who is engaged in any trade, occupation, business, or profession as described in section 48-106, and who has any person in service under any contract of hire, express or implied, oral or written.” Neb. Rev. Stat. § 48-114.
The issue of whether an employer is a “statutory employer” and responsible to provide workers compensation benefits arises when an employer employs an independent contractor who performs work which is the normal, typical or usual work of the employer, and where the employer fails to require the independent contractor to carry workers compensation insurance. When the employee is injured, the employer may be liable as a statutory employer if the independent contractor does not provide coverage.
“Any person, firm, or corporation creating or carrying into operation any scheme, artifice, or device to enable him or her, them, or it to execute work without being responsible to the workers for the provisions of the Nebraska Workers' Compensation Act shall be included in the term employer, and with the immediate employer shall be jointly and severally liable to pay the compensation herein provided for and be subject to all the provisions of such act. This section, however, shall not be construed as applying to an owner who lets a contract to a contractor in good faith, or a contractor, who, in good faith, lets to a subcontractor a portion of his or her contract, if the owner or principal contractor, as the case may be, requires the contractor or subcontractor, respectively, to procure a policy or policies of insurance from an insurance company licensed to write such insurance in this state, which policy or policies of insurance shall guarantee payment of compensation according to the Nebraska Workers' Compensation Act to injured workers.” Neb. Rev. Stat. § 48-116.
“Factors which help determine if the activity is within the owner's trade or business, so that the employees of the owner would be expected to ordinarily complete the task, may include
1. the nature of the business,
2. the previous activities of the business' employees,
3. the amount of participation in the job by the business' employees,
4. the company's charter,
5. the duration of the job,
6. the regularity of the activity,
7. the past practices of the business,
8. the employer's size, and
9. the skilled manpower and tools available to complete the task.” Franklin v. Pawley, 215 Neb. 624, 629, 340 N.W.2d 156, 159-60 (1983).
“For purposes of the act, employee or worker shall be construed to mean:
1. Every person in the service of the state or of any governmental agency created by it, including the Nebraska National Guard and members of the military forces of the State of Nebraska, under any appointment or contract of hire, expressed or implied, oral or written;
2. Every person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in section 48-106 under any contract of hire, expressed or implied, oral or written, including aliens and also including minors. Minors for the purpose of making election of remedies under the Nebraska Workers' Compensation Act shall have the same power of contracting and electing as adult employees.” Neb. Rev. Stat. § 48-115.
Included as employees in Nebraska under the Act are the following:
1. Volunteer firefighters. Neb. Rev. Stat. § 48-115(3).
2. Volunteer ambulance drivers and attendants and emergency care providers. Neb. Rev. Stat. § 48-115(6).
3. Executive officers of corporations who own less than 25% of common stock and executive officers of nonprofit corporations who receive more than $1,000.00 annual compensation. Executive officers of corporation who own more than 25% of common stock and executive officers of nonprofit corporations who receive less than $1,000.00 annual compensation, IF the officer elects to bring himself or herself within the Act. Neb. Rev. Stat. § 48-115(9).
4. Self-employed individuals IF the individual elects to bring himself or herself within the Act. Neb. Rev. Stat. § 48-115(10).
Control of the work of the employee is the key determining factor as to whether the employee is loaned or borrowed.
“’(T)here must be some consensual relationship between the loaned employee and the employer whose services he enters, sufficient to create a new employer-employee relationship. Where an employee enters the service of another at the command and pursuant to the direction of the master, no new relationship is created.’” B & C Excavating Co. v. Hiner, 207 Neb. 248, 250, 298 N.W.2d 155, 156 (1980).
“When making a determination of whether a person is an employee or independent contractor, 10 factors are considered:
1. the extent of control which, by the agreement, the employer may exercise over the details of the work,
2. whether the one employed is engaged in a distinct occupation or business,
3. the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision,
4. the skill required in the particular occupation,
5. whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work,
6. the length of time for which the one employed is engaged,
7. the method of payment, whether by the time or by the job,
8. whether the work is part of the regular business of the employer,
9. whether the parties believe they are creating an agency relationship, and
10. whether the employer is or is not in business.”
“If any employee, or his or her dependents in case of death, of any employer subject to the| Nebraska Workers' Compensation Act files any claim with, or accepts any payment from such employer, or from any insurance company carrying such risk, on account of personal injury, or makes any agreement, or submits any question to the Nebraska Workers' Compensation Court under such act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury.” Neb. Rev. Stat. § 48-148.
“… all contracts of employment shall be presumed to have been made with reference and subject to the Nebraska Workers' Compensation Act. Every such employer and every employee is presumed to accept and come under such sections.” Neb. Rev. Stat. § 48-112.
The Nebraska Workers Compensation Act applies if:
1. The injury occurred in Nebraska;
2. The employment was principally located in Nebraska;
3. The employer was performing business in Nebraska; or
4. The contract of hire was made in Nebraska.
There is no requirement that notice of an injury be given by an employee to the employer within a specified period of time. Rather, notice must be given by the employee as soon as practicable after the alleged injury.
“No proceedings for compensation for an injury under the Nebraska Workers' Compensation Act shall be maintained unless a notice of the injury shall have been given to the employer as soon as practicable after the happening thereof; Provided, that all disputed claims for compensation or benefits shall be first submitted to the Nebraska Workers' Compensation Court. The notice shall be in writing and shall state in ordinary language the time, place, and cause of the injury. It shall be signed by the person injured, or by a person in his or her behalf, or in the event of his or her death, by his or her legal representative or by a person in his or her behalf. The notice shall be served upon the employer or an agent thereof. Such service may be made by delivering the notice to the person on whom it is to be served, or leaving it at his or her residence or place of business, or by sending it by certified or registered mail addressed to the person or corporation on whom it is to be served at his or her last-known residence or place of business. A notice given pursuant to this section shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, or cause of the injury, unless it is shown that it was the intention to mislead, and the employer, or the insurance company carrying such risk, as the case may be, was in fact misled thereby. Want of such written notice shall not be a bar to proceedings under the Nebraska Workers' Compensation Act, if it be shown that the employer had notice or knowledge of the injury.” Neb. Rev. Stat. § 48-133.
“The statute of limitations for filing suit under the Act is two years from the date of accident or death, or if compensation payments have been made for indemnity or medical benefits, two years from the date of the last compensation payment.” Neb. Rev. Stat. § 48-137.
“In an occupational disease context, the date of injury, for purposes of § 48–137, is that date upon which the accumulated effects of the disease manifest themselves to the point the injured worker is no longer able to render further service.” Dawes v. Wittrock Sandblasting & Painting, Inc., 266 Neb. 526, 539, 667 N.W.2d 167, 182 (2003).
An occupational disease is defined as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and shall exclude all ordinary diseases of life to which the general public is exposed. § 48–151(3).” Ross v. Baldwin Filters, 5 Neb.App. 194, 199, 557 N.W.2d 368, 371 (1996).If there are multiple potential employers from which an occupational disease exposure could have occurred, the last injurious rule applies.
“This court most recently discussed the last injurious exposure rule in Hull v. Aetna Ins. Co., 247 Neb. 713, 720, 529 N.W.2d 783, 789 (1995)
In the case of occupational disease, liability is most frequently assigned to the carrier who was covering the risk when the disease resulted in disability, if the employment at the time of disability was of a kind contributing to the disease. The employer or insurer at the time of the most recent exposure which bears a causal relation to the disability is generally liable for the entire compensation.
“This court addressed the issue of the necessary causal relation in greater detail in Osteen v. A.C. and S., Inc., 209 Neb. 282, 290-91, 307 N.W.2d 514, 520 (1981)The last injurious exposure, to be “injurious,” must indeed bear a causal relationship to the disease. However, according to the authorities, this means simply that the exposure must be of the type which could cause the disease, given prolonged exposure. As described in Mathis v. State Accident Insurance Fund, 10 Or.App. 139, 499 P.2d 1331 (1972), an exposure which will support imposition of liability under this rule need not be proved to have been a “material contributing cause” of the disease. Indeed, to so require would bring the employee back to Square One by requiring “proof of the unprovable and litigation of the unlitigable.” Holden v. Willamette Industries, Inc., [28 Or.App. 613, 560 P.2d 298 (1977)].” Morris v. Nebraska Health System, 266 Neb. 285, 293-294, 664 N.W.2d 436, 443 (2003).
“When personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation therefor from his or her employer if the employee was not willfully negligent at the time of receiving such injury.” Neb. Rev. Stat. § 48-101
“Injury and personal injuries mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom and personal injuries described in section 48-101.01. The terms include disablement resulting from occupational disease arising out of and in the course of the employment in which the employee was engaged and which was contracted in such employment. The terms include an aggravation of a preexisting occupational disease, the employer being liable only for the degree of aggravation of the preexisting occupational disease. The terms do not include disability or death due to natural causes but occurring while the employee is at work and do not include an injury, disability, or death that is the result of a natural progression of any preexisting condition.” Neb. Rev. Stat. § 48-151(4)
“Accident means an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. The claimant has the burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There is no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment. Neb. Rev. Stat. § 48-151(2)
“The first element of the statutory definition of an accident is that the injury must be “unexpected or unforeseen.”
The second element is that the accident must happen “suddenly and violently.”
The third element is that the accident must produce “at the time objective symptoms of an injury. Id., citing Sandel v. Packaging Co. of America, 211 Neb. 149, 317 N.W.2d 910 (1982)
“The first element is satisfied if the cause was of an accidental character or the effect was unexpected or unforeseen, and the third element, that the accident produced objective symptoms, is satisfied if the symptoms manifested themselves according to the natural course of such things without any independent intervening cause. Jordan v. Morrill County, supra.
“The second element requires that the accident happen “suddenly and violently.”[T]he term “suddenly and violently” does not require that an accident occurred “instantaneously and with force.” Rather, the element is satisfied if
1. the employee has sustained an injury at an identifiable point in time arising out of and in the course of his or her employment,
2. the employee discontinues employment because of the injury, and
3. the employee seeks medical treatment because of the injury.
"Vonderschmidt v. Sur–Gro, 262 Neb. 551, 557, 635 N.W.2d 405, 410 (2001). If an employee stops work and seeks medical treatment, then the employee has established the identifiable point in time when the injury occurred. Id. at 558, 635 N.W.2d at 410.”
“Occupational disease means only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed.” Neb. Rev. Stat. § 48-151(3)“Where a worker has contracted an occupational disease by exposure to a harmful substance over a period of years in the course of successive employers or insurers, the employer who most recently exposed the worker to the harmful substance, or that employer's insurer, is liable to pay the entire award. … “Where an occupational disease results from the continual absorption of small quantities of some deleterious substance from the environment of the employment over a considerable period of time, an afflicted employee can be held to be injured only when the accumulated effects of the substance manifest themselves, which is when the employee becomes disabled and entitled to compensation. Id. Thus, the date that determines liability is the date that the employee becomes disabled from rendering further service.” Hull v. Aetna Ins. Co., 247 Neb. 713, 719, 529 N.W.2d 783, 788-789 (1995) “Unless the character of an injury is objective, that is, an injury's nature and effect are plainly apparent, an injury is a subjective condition, requiring an opinion by an expert to establish the causal relationship between an incident and the injury as well as any claimed disability consequent to such injury.” Mendoza v. Omaha Meat Processors Through Tower Ins. Co,. 225 Neb. 771, 785, 408 N.W.2d 280, 289 (1987)
In order to sustain a claim for a compensable heart/cardiovascular injury, the claimant must prove both legal and medical causation.“While legal cause is established by satisfying the “stress greater than nonemployment life” test, a claimant must still demonstrate medical causation. If it is claimed that an injury was the result of stress or exertion in the employment, medical causation is established by a showing by the preponderance of the evidence that the employment contributed in some material and substantial degree to cause the injury. Mann v. City of Omaha, 211 Neb. 583, 319 N.W.2d 454 (1982); Sellens v. Allen Products Co., Inc., 206 Neb. 506, 293 N.W.2d 415 (1980).” Leitz v. Roberts Dairy, 237 Neb. 235, 244, 465 N.W.2d 601, 607 (1991)
In Nebraska, there can be no claim for psychological injury unless the claimant can prove that the psychological injury arises out of the physical injury. Mental stress, alone, is not compensable. See Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d 206 (2007)Exception: However, there is one exception which arises out of the Zach case. First responders (generally sheriffs, police officers, state patrol, volunteer or paid firefighters) who can establish a mental injury, without physical injury, was caused by employment conditions which were “extraordinary and unusual in comparison to the normal conditions of the particular employment” and not due to events “which are incidental to normal employer and employee relations, including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, or terminations” may be entitled to compensation under the Nebraska Workers’ Compensation Act. See Neb. Rev. Stat. § 48-101.01
“When personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation therefor from his or her employer if the employee was not willfully negligent at the time of receiving such injury.” Neb. Rev. Stat. § 48-101Arising Out Of – “The test to determine whether an act or conduct of an employee which is not a direct performance of the employee's work “arises out of” his or her employment is whether the act is reasonably incident thereto, or is so substantial a deviation as to constitute a break in the employment which creates a formidable independent hazard. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996); Cannia v. Douglas Cty., 240 Neb. 382, 481 N.W.2d 917 (1992). The “arising out of” employment requirement is primarily concerned with causation of an injury. Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996).” Misek v. CNG Financial, 265 Neb. 837, 842, 660 N.W.2d 495, 500 (2003).
In the Course Of – “The “in the course of” requirement of § 48-101 has been defined as testing the work connection as to time, place, and activity; that is, it demands that the injury be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment. Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631 N.W.2d 510 (2001). An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto. Skinner v. Ogallala Pub. Sch. Dist. No. 1, supra.” Misek v. CNG Financial, 265 Neb. 837, 843, 660 N.W.2d 495, 500-501 (2003).
“A commercial traveler is regarded as acting in the course of his or her employment during the entire period of travel on the employer's business. McGee v. Panhandle Technical Sys., 223 Neb. 56, 387 N.W.2d 709 (1986). Where an employee, in the performance of his or her duties, is required to travel and an accident occurs while he or she is so engaged, the accident arises out of and in the course of his or her employment and is within the scope of the
Nebraska Workers' Compensation Act.
Id. “[T]raveling employees are generally within the course of their employment from the time they leave home on a business trip until they return, for the self-evident reason that the traveling itself is a large part of the job.” 1 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation Law § 14.01 at 14-2 (1999). Consequently, commercial travelers are not subject to the going to and from work rule, because they are already “on the job” during the time that they are traveling.” Torres v. Aulick Leasing, Inc., 258 Neb. 859, 862, 606 N.W.2d 98, 102 (2000).
“Under the going to and from work rule, injuries sustained by an employee while going to and coming from work do not arise out of and in the course of employment unless it is determined that a distinct causal connection exists between an employer-created condition and the occurrence of the injury.” Torres v. Aulick Leasing, Inc., 258 Neb. 859, 862, 606 N.W.2d 98, 101 (2000).
“An injury sustained by an employee while going to and from work, at a fixed place of employment, does not arise out of and in the course of employment. La Croix v. Omaha Public Schools, 254 Neb. 1014, 1017, 582 N.W.2d 283, 285 (1998).
“The special errand exception to the going to and from work rule has been stated as follows:When an employee, having identifiable time and space limits on the employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.
1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 14.05 at 14-5 (2001). The special errand exception applies when there is instruction, direction, requirement, or suggestion by the employer that the employee make the journey.”
“….where an employee is transported from an exempt employment situation to his or her covered employment site in employer-controlled or employer-supplied transportation, an injury during that journey arises out of and in the course of the covered employment.” Kramer v. DeNoyer, 240 Neb. 805, 809, 484 N.W.2d 447, 450 (1992).
An officer stopped an individual who was armed with a weapon. Due to a miscommunication or error, the weapon was not identified at that time as stolen. The individual and weapon were subsequently involved in a bank robbery resulting in several fatalities. Upon learning that he had previously stopped the individual, the officer became very distraught. His family alleged that he committed suicide as result. The Nebraska Supreme Court held that the claim was not compensable under Nebraska law as it resulted entirely from mental stimulus. See Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d 206 (2007).Neb. Rev. Stat. § 48-102.
“Willful negligence consists of (a) a deliberate act, (b) such conduct as evidences reckless indifference to safety, or (c) intoxication at the time of the injury, such intoxication being without the consent, knowledge, or acquiescence of the employer or the employer's agent. Neb.Rev.Stat. § 48–151(7) (Reissue 2004). The appellees do not contend that Coe deliberately injured himself or that he was intoxicated. The issue is whether his conduct rose to the level of reckless indifference to safety.
“Reckless indifference to safety means more than lack of ordinary care. It implies a rash and careless spirit, not necessarily amounting to wantonness, but approximating it in degree-a willingness to take a chance. An employee's conduct must manifest a reckless disregard for the consequences coupled with a consciousness that injury will naturally or probably result. Guico v. Excel Corp., 260 Neb. 712, 619 N.W.2d 470 (2000).“The employer bears the burden to prove the employee's willful negligence. Neb.Rev.Stat. § 48–107 (Reissue 2004).”
Estate of Coe v. Willmes Trucking, L.L.C., 268 Neb. 880, 889, 689 N.W.2d 318, 326 (2004).
“Wherever in theNebraska Workers' Compensation Act the term wages is used, it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. It shall not include gratuities received from the employer or others, nor shall it include board, lodging, or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring, except that if the workers' compensation insurer shall have collected a premium based upon the value of such board, lodging, and similar advantages, then the value thereof shall become a part of the basis of determining compensation benefits. In occupations involving seasonal employment or employment dependent upon the weather, the employee's weekly wages shall be taken to be one-fiftieth of the total wages which he or she has earned from all occupations during the year immediately preceding the accident, unless it be shown that during such year, by reason of exceptional causes, such method of computation does not fairly represent the earnings of the employee. In such a case, the period for calculation shall be extended so far as to give a basis for the fair ascertainment of his or her average weekly earnings. In continuous employments, if immediately prior to the accident the rate of wages was fixed by the day or hour or by the output of the employee, his or her weekly wages shall be taken to be his or her average weekly income for the period of time ordinarily constituting his or her week's work, and using as the basis of calculation his or her earnings during as much of the preceding six months as he or she worked for the same employer, except as provided in sections 48-121 and 48-122. The calculation shall also be made with reference to the average earnings for a working day of ordinary length and exclusive of earnings from overtime, except that if the insurance company's policy of insurance provides for the collection of a premium based upon such overtime, then such overtime shall become a part of the basis of determining compensation benefits.” Neb. Rev. Stat. § 48–126.
Generally –Average Weekly Wage (AWW) is calculated using the average of the wages from the 26 weeks prior to the injury, and only includes wages from the employer wherein the employee was injured. The calculation should exclude abnormally low weeks. If weeks are considered abnormally low and excluded, do not add additional weeks beyond the 26 week period. For example, if 2 of the 26 weeks are abnormally low, only use the remaining 24 weeks for the calculation. Weekly wages shall be taken to be his or her average weekly income for the period of time ordinarily constituting his or her week’s work, to mean the number of hours an employee actually works during the work week, and not including vacation time, sick leave, or holidays. Overtime hours, but not overtime wages, are included in the calculation of the AWW. (Use regular wage rate for the overtime hours in the calculation).
Seasonal employment – AWW is calculated taking one fiftieth of the total wages claimant has earned from all occupations during the year immediately preceding the accident.
Note: For permanent disability indemnity benefits, when an employee works less than 40 hours per week prior to the injury, the AWW must be determined based on an imputed 40 hour work week rather than actual wages. See Neb. Rev. Stat. § 48–121(4).
Temporary Total Disability (TTD) is the period of time an employee is unable to work as a result of the injury while still treating before he or she reaches maximum medical improvement (MMI). TTD compensation is paid after the first 7 days of disability at 2/3 of the AWW during the period of temporary total disability subject to weekly minimums and maximums. See Neb. Rev. Stat. § 48–121(1).
If disability exists for longer than six weeks, the first seven days are then owed. See Neb. Rev. Stat. § 48–119.
Temporary Partial Disability (TPD) is when an employee returns to work while still treating before he or she reaches maximum medical improvement (MMI), but at less hours or less pay than prior to the injury. TPD compensation is paid at 2/3 of the difference between the return to work wages and the AWW during the period of temporary partial disability subject to weekly minimums and maximums. See Neb. Rev. Stat. § 48–121(2).
Permanent Partial Disability (PPD) is paid after the employee reaches maximum medical improvement (MMI), if the treating doctor determines that the employee suffered a permanent disability. The payments are determined by the type of injury sustained, scheduled member or body as a whole (BAW).
Scheduled Member Injuries are injuries to body parts not involving the head, neck or back. See Neb. Rev. Stat. § 48–121(3). Scheduled members include the thumbs, fingers, hands, arms, toes, feet, legs, eyes, ears, loss of hearing, nose, and amputations of members. Shoulder injuries are scheduled member injuries to the arm. The various scheduled members are assigned a period of weeks by statute, and the PPD benefits are paid at 2/3 of the AWW for those scheduled weeks multiplied by the percentage of disability assigned to the scheduled member by the treating doctor.The scheduled weeks for the various members are as follows:
|1st phalange of thumb/finger||½ of weeks for full thumb/finger|
|½ of phalange of thumb/finger||¼ of weeks for full thumb/finger|
|Hand (below elbow)||175|
|Arm (Shoulder and below)||225|
|1st phalange of toe||½ of weeks for toes|
|Toe- more than one phalange||loss of entire toe|
|Foot (below knee)||150|
|Leg (below hips)||215|
|Loss of hearing||50|
For example, if an employee suffers an injury for which his treating doctor assigns a 10% permanent impairment to the right foot, the injured employee would be entitled to 15 weeks of PPD benefits. (150 weeks for foot x 10% impairment). If the foot below the knee was amputated, the employee would be entitled to 150 weeks of PPD benefits.
Body as a Whole (BAW) injuries involve injuries to the trunk of the body, including the back, neck and head. Hips are considered a BAW injury if the disability extends into the trunk as opposed to the leg. “Disability is to be determined by the location of the residual impairment rather than the situs of the injury.” Ideen v. American Signature Graphics, 257 Neb. 82, 87, 595 N.W.2d 233, 236 (1999). Shoulders are generally not considered BAW injuries.
Permanent disability benefits for BAW injuries are measured by the loss of earning power suffered as a result of the injury. See Neb. Rev. Stat. § 48-121(2). “Earning power, as used in § 48-121(2), is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he or she is engaged or for which he or she is fitted.” Frauendorfer v. Lindsay Mfg. Co., Inc., 263 Neb. 237, 246-247, 639 N.W.2d 125, 135-136 (2002).
“If an employee returns to work following an injury, earning the same or higher wages than before injury, it is indicative, but not conclusive, that the earning power has not been impaired.” Sidel v. Travelers Ins. Co., 205 Neb. 541, 546, 288 N.W.2d 482, 485 (1980).
When a doctor assesses permanent disability for a BAW injury, the permanent disability rating does not dictate the loss of earning capacity, but rather, the effect of the disability on the injured employee’s ability to work is key. Thus, permanent restrictions assessed by a doctor (not just via an FCE) are determinative as to the effect of the injury on the injured employee’s earning capacity.
If the treating doctor determines the injured employee suffered a permanent injury and assesses permanent restrictions, the injured employee is entitled to have a vocational rehabilitation counselor appointed to assess the impact of the permanent disability on the earning capacity of the employee (and to provide vocational rehabilitation services). See Rules of Procedure, Nebraska Workers’ Compensation Court, Rule 42, & 45. The parties should attempt in good faith to agree on a vocational counselor, but if an agreement cannot be reached, the Court will appoint one. The employer and/or its workers compensation carrier are required to pay the fees of the vocational counselor. Id.
The vocational counselor will assess the impact of any permanent disability (restrictions) on the employee’s earning capacity in terms a percentage of loss. PPD benefits for BAW injuries shall not extend beyond 300 weeks of disability, and the employer is entitled to reduce the 300 weeks by all TTD and TPD weeks paid.
For example, if an employee suffers an injury to his body as a whole for which his treating doctor assigns a 10% permanent impairment and permanent restrictions, and a vocational counselor assigns a 25% loss of earning capacity as a result of the permanent restrictions/impairment, the employee is entitled to PPD in the amount of 25% of his 2/3 of the AWW for 300 weeks (less any weeks wherein he was paid TTD/TPD). If the injured employee was paid TTD for 20 weeks before reaching MMI, the injured employee would be entitled to 280 weeks of PPD.
The 300 weeks of permanent disability owed begins from the date of injury, not when MMI is reached or when loss of earning capacity is assessed. Thus, when MMI is reached and permanency is assessed, the injured employee will be owed PPD for all past weeks through the present wherein he/she was not paid TTD or TPD, with PPD payments extending into the future for the remaining 300 weeks. In other words, PPD payments need to be brought current for any past unpaid weeks.
Permanent Total Disability (PTD) is owed after the employee reaches maximum medical improvement (MMI), if the treating doctor determines that the employee suffered a permanent disability and can no longer work, or if a vocational counselor determines that the injury has caused a 100% loss of earning capacity. PTD benefits are paid at 100% of 2/3 of the AWW for life, or for so long as the injured employee is totally disabled.“[T]otal disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. The essence of the test is the probable dependability with which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his crippling handicaps.” Skomal v. World of Food, 6 Neb.App. 128, 135, 570 N.W.2d 542, 547 (1997), citing 4 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 57.51(a) at 10-283, 10-288, 10-329 (1997). “An odd-lot worker, while not altogether incapacitated for work, is one who is so handicapped that he or she will not be employed regularly in any well-known branch of the labor market.” Zavala v. ConAgra Beef Co., 265 Neb. 188, 195, 655 N.W.2d 692, 699 (2003).
Neb. Rev. Stat. § 48-121(3).
Scheduled member injury and BAW injury - “We conclude that when a worker sustains a scheduled member injury and a whole body injury in the same accident, the Act does not prohibit the court from considering the impact of both injuries in assessing the loss of earning capacity. In making such an assessment, the court must determine whether the scheduled member injury adversely affects the worker such that loss of earning capacity cannot be fairly and accurately assessed without considering the impact of the scheduled member injury upon the worker's employ ability. If the loss of earning capacity cannot be fairly and accurately assessed without such consideration, then the court is permitted to do so.” Zavala v. ConAgra Beef Co., 265 Neb. 188, 199, 655 N.W.2d 692, 702 (2003).
If an employee dies as a result of a workplace injury, and if he/she leaves one or more dependents who depended on his/her earnings for support, his dependents are entitled to weekly benefits. See Neb. Rev. Stat. § 48-122.Widows/widowers are entitled to death benefits for life or until they remarry. If the widow/widower remarries, he/she is entitled to receive a lump sum payment of two years of benefits. See Neb. Rev. Stat. § 48-122.01.
If dependent children survive the deceased employee, they are entitled to weekly benefits until nineteen years of age, or until twenty-five years of age if they are enrolled as a full time student at any accredited educational institution. See Neb. Rev. Stat. § 48-124.See Neb. Rev. Stat. § 48-122 through 48-124 for calculations of specific amounts owed to children and spouses. Burial expenses not exceeding $10,000.00 are allowed. See Neb. Rev. Stat. § 48-122.
Under Neb.Rev.Stat. § 48–162.01(3) (Cum.Supp.2002), an employee is entitled to vocational rehabilitation services when he or she is unable to perform suitable work for which he or she has previous training or experience. The purpose of vocational rehabilitation under workers' compensation is to restore an injured employee to suitable gainful employment. See § 48–162.01(3); Rodriguez v. Monfort, Inc., 262 Neb. 800, 635 N.W.2d 439 (2001). In order to effectuate this purpose, the employee must be eligible and willing to return to some form of employment.” Ortiz v. Cement Products, Inc., 270 Neb. 787, 790, 708 N.W.2d 610, 613 (2005).To be entitled to vocational rehabilitation services, permanent restrictions must be assigned by a doctor.
“The following priorities shall be used in developing and evaluating a vocational rehabilitation plan. No higher priority may be utilized unless all lower priorities have been determined by the vocational rehabilitation counselor and a vocational rehabilitation specialist or judge of the compensation court to be unlikely to result in suitable employment for the injured employee that is consistent with the priorities listed in this subsection. If a lower priority is clearly inappropriate for the employee, the next higher priority shall be utilized. The priorities are, listed in order from lower to higher priority:
(b) Modification of the previous job with the same employer;
(c) A new job with the same employer;
(d) A job with a new employer; or
(e) A period of formal training which is designed to lead to employment in another career field.”
“Vocational rehabilitation training costs shall be paid from the Workers' Compensation Trust Fund.” http://law.justia.com/cases/nebraska/supreme-court/1999/712-1.html. Thus, tuition and fees are not the responsibility of the employer. However, while an employee participates in an approved plan of vocational rehabilitation, he/she is entitled to TTD/TPD benefits.See Neb. Rev. Stat. § 48-121(5).
Generally, indemnity benefits must be paid within 30 days from when they are due and owing, which time begins to run at the time of notice of disability, entry of a final order, award, or judgment. See Neb. Rev. Stat. § 48-125. A 50% penalty shall be added to all delinquent payments for indemnity, unless a reasonable controversy exists as to the injured party’s entitlement to the benefit. Id.“A reasonable controversy may exist
(1) if there is a question of law previously unanswered by the appellate courts, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or
(2) if the properly adduced evidence would support reasonable but opposite conclusions by the Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. Guico, supra. To avoid the penalty provided for in § 48-125, an employer need not prevail in the employee's claim, but must have an actual basis in law or fact for disputing the claim and refusing compensation. Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987).” Hale v. Vickers, Inc., 10 Neb.App. 627, 634, 635 N.W.2d 458, 467 (2001).
Late payments for medical benefits are not subject to the 50% penalty, but may be subject to an award of attorney’s fees (see below).
If the claimant is successful in recovering unpaid medical bills or unpaid compensation, he/she is entitled to an award of a reasonable attorney’s fees. See Neb. Rev. Stat. § 48-125(2)(a).Attorney’s fees can also be awarded if the employer files an appeal and fails to obtain a reduction in the award, See Neb. Rev. Stat. § 48-125(2)(b), and if the employee files an appeal and obtains an award or an increase in an award. See Neb. Rev. Stat. § 48-125(2)(c).
When an attorney’s fee is allowed under Neb. Rev. Stat. § 48-125, interest shall be assessed on the final award obtained, computed from the date compensation was payable until payment is made. See Neb. Rev. Stat. § 48-125(2). When an attorney’s fee is assessed, costs shall also be assessed against the employer for cost of depositions if admitted into evidence and costs may be assessed for the fees and mileage of witnesses attending the proceedings. See Neb. Rev. Stat. § 48-172.
“The employer is liable for all reasonable medical, surgical, and hospital services, including plastic surgery or reconstructive surgery but not cosmetic surgery when the injury has caused disfigurement, appliances, supplies, prosthetic devices, and medicines as and when needed, which are required by the nature of the injury and which will relieve pain or promote and hasten the employee's restoration to health and employment, and includes damage to or destruction of artificial members, dental appliances, teeth, hearing instruments, and eyeglasses, but, in the case of dental appliances, hearing instruments, or eyeglasses, only if such damage or destruction resulted from an accident which also caused personal injury entitling the employee to compensation therefor for disability or treatment, subject to the approval of and regulation by the Nebraska Workers' Compensation Court, not to exceed the regular charge made for such service in similar cases.” Neb. Rev. Stat. § 48-120(1)(a).
An injured employee has the right to choose his/her doctor, but only if that doctor has previously treated the employee or an immediate family member, and the doctor maintains documentation of such treatment. See Neb. Rev. Stat. § 48-120(2)(a).
The employer shall notify the employee following an injury of his/her right to choose a doctor in a form and manner and within a timeframe established by the compensation court. The Court has created what is commonly known as the ‘Form 50’, which gives the required notice to the employee (http://www.wcc.ne.gov/publications/form50.pdf). This report shall be filled out at the time of the injury or as soon thereafter as is practical.
If the employer fails to notify the employee of his/her right to choose a doctor within a reasonable time after the injury, then the employee has the right to choose a doctor. If the employee fails to exercise his/her right to choose a doctor following notice of the right to choose, then the employer has the right to choose the doctor. Once a choice is made by the employee or employer under Neb. Rev. Stat. § 48-120(2)(a), neither party can change the choice without agreement of the parties or order of the Court.If the employer denies compensability of the claimed injury, the employee has the right to seek medical care on his/her own, and the employer will be liable for any medical care should the injury ultimately be determined to be compensable by the court.
If there is a dispute as to plaintiff’s medical condition or treatment, either party may request the appointment of an independent medical examiner to be paid for by the employer. See Neb. Rev. Stat. § 48-134.01.
From time to time during the continuance of disability, an injured employee shall submit to an examination by a physician or surgeon at the request of the employer. During the exam, the employee has the right to have his/her own physician present, paid for by the employee. Unreasonable refusal to submit shall deprive him/her to the right to compensation during the continuance of the refusal. See Neb. Rev. Stat. § 48-134.
“If the injured employee unreasonably refuses or neglects to avail himself or herself of medical or surgical treatment furnished by the employer, except as herein and otherwise provided, the employer is not liable for an aggravation of such injury due to such refusal and neglect and the compensation court or judge thereof may suspend, reduce, or limit the compensation otherwise payable under the Nebraska Workers' Compensation Act.” Neb. Rev. Stat. § 48-120(2)(c).
“If any employee, or his or her dependents in case of death, of any employer subject to the Nebraska Workers' Compensation Act files any claim with, or accepts any payment from such employer, or from any insurance company carrying such risk, on account of personal injury, or makes any agreement, or submits any question to the Nebraska Workers' Compensation Court under such act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury.” Neb. Rev. Stat. § 48-148.
“When a third person is liable to the employee or to the dependents for the injury or death of the employee, the employer shall be subrogated to the right of the employee or to the dependents against such third person. The recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his or her dependents should have been entitled to recover.“Any recovery by the employer against such third person, in excess of the compensation paid by the employer after deducting the expenses of making such recovery, shall be paid forthwith to the employee or to the dependents and shall be treated as an advance payment by the employer on account of any future installments of compensation.
“Nothing in the Nebraska Workers' Compensation Act shall be construed to deny the right of an injured employee or of his or her personal representative to bring suit against such third person in his or her own name or in the name of the personal representative based upon such liability, but in such event an employer having paid or paying compensation to such employee or his or her dependents shall be made a party to the suit for the purpose of reimbursement, under the right of subrogation, of any compensation paid.” Neb. Rev. Stat. § 48-118.
“If the injured employee brings suit against a third party, the injured employee must make the employer a party to the third party suit for subrogation purposes. Thirty days notice must be given by the employee to the employer of the intent to file suit. Failure to do so precludes the employee from recovering an attorney’s fee from the subrogated portion of any recovery. Further, the employer must agree to any settlement between the employee and third party.” See Neb. Rev. Stat. § 48–118.1, 48-118.03, & 48-118.04.If the employer and the employee or the dependents are unable to agree upon the amount of employer’s recoverable subrogation interest from a third-party recovery, then the matter may be submitted to the district court for an equitable distribution of any settlement proceeds. One of the factors the court will consider is if the employee has been made whole by the third party recovery.
There is no special certification required of attorneys to practice in the Nebraska Worker’ Compensation Court, and there is no separate designation or certification available.
Claims professionals are not required to be licensed in Nebraska in order to handle and adjust workers’ compensation claims.
The Nebraska Workers Compensation Court is made up of seven judges who are appointed by the governor with retention elections every six years. See 48-153. To serve as judge, a person must be at least 30 years of age, a U.S. citizen, have engaged in the practice of law in Nebraska for at least 5 years (which may include service as a judge), currently be admitted to practice in the Nebraska Supreme Court, and be a resident of Nebraska (and to remain a resident while serving). See Neb. Rev. Stat. § 48-153.01.
The Nebraska Worker’ Compensation Court “shall have authority to administer and enforce all of the provisions of the Nebraska Workers' Compensation Act.” Neb. Rev. Stat. § 48-152.
Decisions rendered by the judges of the Nebraska Worker’ Compensation Court “shall provide the basis for meaningful appellate review” and the judges “shall specify the evidence upon which the judge relies.” Nebraska Workers’ Compensation Court Rules of Procedure, Rule 11(A).
Appeals of decisions of the Nebraska Workers’ Compensation Court are prosecuted similar to appeals from the District Courts. Appellants have thirty days from the entry of final judgments in which to file appeals. See Neb. Rev. Stat. § 48-182 & 48-185.
“Resolution of any workers’ compensation dispute or controversy is available on an informal basis. Any party may contact the court to request resolution by informal means, or a judge of the court may, on his or her own motion, refer the parties to informal dispute resolution.” Nebraska Workers’ Compensation Court Rules of Procedure, Rule 48.
Parties are free to attempt to mediate the claims as they desire.
“The interested parties shall have the right to settle all matters of compensation between themselves with the consent of the workers' compensation insurer, if any, and in accordance with the Nebraska Workers' Compensation Act. No such settlement shall be binding unless the settlement is in accordance with such act.” Neb. Rev. Stat. § 48-136.
The filing fee for an Application for Lump Sum Settlement or a Release is $15.00. See Neb. Rev. Stat. § 48-139(4).
The claims of an injured employee generally cannot be released against an employer or its workers compensation carrier without court approval, unless certain criteria apply. If court approval is necessary, an application for lump sum settlement seeking approval of a settlement must be filed with and approved by the Nebraska Workers’ Compensation Court as follows:
(i) The employee is not represented by counsel;
(ii) The employee, at the time the settlement is executed, is eligible for medicare, is a medicare beneficiary, or has a reasonable expectation of becoming eligible for medicare within thirty months after the date the settlement is executed;
(iii) Medical, surgical, or hospital expenses incurred for treatment of the injury have been paid by medicaid and medicaid will not be reimbursed as part of the settlement;
(iv) Medical, surgical, or hospital expenses incurred for treatment of the injury will not be fully paid as part of the settlement; or
(v) The settlement seeks to commute amounts of compensation due to dependents of the employee.
“(2)(a) An application for an order approving a lump-sum settlement, signed and verified by both parties, shall be filed with the clerk of the compensation court and shall be entitled the same as an action by such employee or dependents against such employer. The application shall contain a concise statement of the terms of the settlement or agreement sought to be approved with a brief statement of the facts concerning the injury, the nature thereof, the wages received by the injured employee prior thereto, the nature of the employment, and such other matters as may be required by the compensation court. The application may provide for payment of future medical, surgical, or hospital expenses incurred by the employee. The compensation court may hold a hearing on the application at a time and place selected by the compensation court, and proof may be adduced and witnesses subpoenaed and examined the same as in an action in equity.
(c) Every such lump-sum settlement approved by order of the compensation court shall be final and conclusive unless procured by fraud. Upon paying the amount approved by the compensation court, the employer
(i) shall be discharged from further liability on account of the injury or death, other than liability for the payment of future medical, surgical, or hospital expenses if such liability is approved by the compensation court on the application of the parties, and
(ii) shall be entitled to a duly executed release. Upon filing the release, the liability of the employer under any agreement, award, finding, or decree shall be discharged of record.”
Court approval of a settlement is not required when the employee is represented by counsel; the employee is not eligible for Medicare, is not a Medicare beneficiary, or does not have a reasonable expectation for Medicare within thirty months of the settlement; when medical, surgical or hospital expenses have been paid by Medicaid and will be reimbursed as part of the settlement; when medical, surgical or hospital expenses incurred will be fully paid as part of the settlement; and when the settlement does not seek to commute compensation due to dependents of the employee. See Neb. Rev. Stat. § 48-139(1)(a). In this situation, a Release can be filed with the court. See Neb. Rev. Stat. § 48-139(1)(b). The Release, when signed and verified by the employee and his/her attorney, shall be a full and complete discharge from further liability of the employer, including indemnity and medical. See Neb. Rev. Stat. § 48-139(3).“The release shall be made on a form approved by the compensation court and shall contain a statement signed and verified by the employee that:
(a) The employee understands and waives all rights under the Nebraska Workers' Compensation Act, including, but not limited to:
(i) The right to receive weekly disability benefits, both temporary and permanent;
(ii) The right to receive vocational rehabilitation services;
(iii) The right to receive future medical, surgical, and hospital services as provided in section 48-120, unless such services are specifically excluded from the release; and
(iv) The right to ask a judge of the compensation court to decide the parties' rights and obligations;
(c) There are no medical, surgical, or hospital expenses incurred for treatment of the injury which have been paid by medicaid and not reimbursed to medicaid by the employer as part of the settlement; and
(d) There are no medical, surgical, or hospital expenses incurred for treatment of the injury that will remain unpaid after the settlement.”
All employers must carry workers compensation insurance or be self-insured through approval by the Workers Compensation Court. See Neb. Rev. Stat. § 48-145.
“All employers subject to the Nebraska Workers’ Compensation Act, except the State of Nebraska and any governmental agency created by the state, must either carry workers’ compensation insurance, or, if eligible, may self-insure through a risk management pool, or, after application to and approval by the Nebraska Workers’ Compensation Court, may self-insure their risk, or, in the case of an employer who is a lessor of one or more commercial vehicles leased to a self-insured motor carrier, may be a party to an effective agreement with the self-insured motor carrier under section 48-115.02. No employee may reject the provisions of the Act. No employer, including religious or charitable institutions, and governmental subdivisions, may reject the provisions of the Act.” Nebraska Workers’ Compensation Court Rules of Procedure, Rule 69.
“If an employer, as defined in section 48-106, does not carry a policy of workers' compensation insurance nor qualify as a self-insurer or, in the case of an employer who is a lessor of one or more commercial motor vehicles leased to a self-insured motor carrier, is not a party to an effective agreement pursuant to section 48-115.02, he or she loses the right to interpose the three defenses mentioned in section 48-102 in any action brought against him or her for personal injury or death of an employee.” Neb. Rev. Stat. § 48-103.
“Thus, § 48–103 provides a powerful incentive for an employer to carry either workers' compensation insurance or an acceptable alternative. If the employer does not, then the injured employee may elect to pursue either a common-law action or workers' compensation proceedings. If the employee chooses the common-law action, not only will the employer be subject to common-law damages, the employer's ability to raise the three common-law defenses most likely to defeat the employee's claim will be cut off.” Estate of Coe v. Willmes Trucking, L.L.C., 268 Neb. 880, 888, 689 N.W.2d 318, 326 (2004).