NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
On the corner of my desk sits a coffee cup that reads: “A good lawyer knows the law; a great lawyer knows the Judge.” At first blush, the cup is just meant to garner a laugh or two. For those of us who practice Nebraska workers’ compensation law, however, the quote has a more practical meaning.
If you’re familiar with the work comp system in Nebraska, you know that there are only seven Judges appointed to hear all disputes that arise under the Nebraska Workers’ Compensation Act. With a work force population of just over 1,022,000, it’s no secret that the seven Judges are certainly kept busy. In 2020 alone, there were over 119 workers’ compensation trials. Each trial resulted in a written decision where the Judge was tasked with applying the law to facts. This is in addition to the hundreds of motion hearings that the Judges heard.
Compare these numbers to the only 20 workers’ compensation related opinions that were released by the Nebraska Court of Appeals and Supreme Court in 2020. It doesn’t take a scientific calculator to see that there are drastically more trial court decisions every year than there are appellate level decisions. So why is this significant, and what does my coffee cup have to do with this? Ponder this: suppose a lawyer only reads the appellate court decisions that come out every year. There’s no disputing it’s important to read those cases – after all, law established by the Nebraska Supreme Court, or the Court of Appeals is in fact “stare decisis” and is therefore binding law. But contained in the 119 trial court decisions is equally (if not more) valuable information. Contained in those 119 trial court decisions are the thoughts, opinions, and legal interpretations of the only seven people who decide workers’ compensation cases. While all seven of the workers’ compensation judges are tasked with holding plaintiffs and defendants to the same statutory law, that doesn’t necessarily mean the judges are perfect clones who handle and evaluate their cases in the same exact way. It can and frequently does happen that the judges dispute how a particular statute should apply, or what exactly is binding case law. How Judge Fitzgerald interprets Form 50 rules may not necessarily be the same as Judge Martin or Judge Block. Indeed, how Judge Hoffert interprets the Supreme Court’s holding in Picard v. P&C Group 1 may differ from Judge Fridrich’s interpretation of the exact same case. And that’s how it clicks: A good lawyer knows the law; a great lawyer knows the thought process of the judge who will ultimately apply it.
After researching, reading, and studying every single trial level decision written over the last several years, it’s time to share the wealth of that information with you. Written for lawyers, adjusters, employers, or even just the lay person who wants to learn more about workers’ compensation law in Nebraska, the CPW Compendium series is meant to be a tool to help educate others about the patterns being seen at the trial court level. While trial court decisions may lack the fanciness of being “stare decisis,” make no mistake that knowing your judge is one of the most valuable tools a Plaintiff or Defense attorney can and should have before ever evaluating or trying a case. After all, being a good lawyer is merely knowing the law. Being a great lawyer is knowing the judge who applies it.
Make sure you subscribe to any of our news updates here.
NEBRASKA NEWS
NEBRASKA SUPREME COURT
In Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586 (2016), the Nebraska Supreme Court determined counterclaims are not permissible in workers’ compensation cases. In the case, claimant voluntarily dismissed his Petition, but the Court allowed the case to continue as the employer filed a counterclaim. On appeal, the Court held that because counterclaims “are not part of the pleading scheme, there is no procedure enabling a plaintiff to admit or deny the substantial averments of a counterclaim, and no procedure by which a plaintiff can state his or her contention with reference to any additional matters in dispute as disclosed by the counterclaim.” Further, allowing the suit to proceed on an employer’s counterclaim violates the claimant’s right to voluntary dismiss an action without prejudice before the final submission of the case to the court under Neb. Rev. Stat. § 48-177.
Practice Tip: Interestingly, while not judicially efficient, the Court did imply that the employer has the option of filing a Petition to determine the rights of the parties in lieu of filing a counterclaim. So, if a case is not proceeding or claimant intends to move for dismissal without prejudice under Neb. Rev. Stat. § 48-177, the employer should consider filing a Petition.
For more information regarding Nebraska news and updates please contact Jennifer Caswell orDanielle Jones in our Omaha, Nebraska office at 402.505.4630 or Jennifer.Caswell@Ritsema-Lyon.com and Danielle.Jones@Ritsema-Lyon.com.
NEWS
RITSEMA & LYON WEBINAR – MEDICARE SET ASIDES
Ritsema & Lyon is hosting a webinar on Medicare set asides. The webinar is scheduled for Thursday July 23, 2015 from 9:00 a.m. - 10:30 a.m. MDT. Delores Dafoe will be discussing the ins & outs of preparing and handling MSAs. Check out the Events section of our website, www.Ritsema-Lyon.com, for more information and to register. Please contact Jennie Smith atJennie.Smith@Ritsema-Lyon.com or 303.297.7275 with any questions.
22nd ANNUAL SEMINAR
Ritsema & Lyon’s 22nd Annual Workers’ Compensation Seminar will be held on Friday, August 28, 2015, at the Doubletree by Hilton Hotel in Denver. Full itinerary and invitation coming soon. Contact Jennie Smith atJennie.Smith@Ritsema-Lyon.com or 303.297.7275 with any questions.
NEBRASKA UPDATE
NEW LEGISLATION PASSED
LB480, discussed in our May 2015 newsletter was passed. The changes are as follows:
Benefits can be denied when an employee knowingly and willfully made false statements regarding his or her physical or medical condition by acknowledging that he or she is able to perform the essential functions of a job based on the employer’s job descriptionwhen such misrepresentation caused further injury.
Employers are not responsible for any finance charges or late penalty payments as a result of medical services rendered by a provider.
The interest rate applicable to late payments is now 6 percentage points above the bond investment yield, as published by the U.S. Secretary of Treasury, which is currently 2.137 percent.
Workers’ compensation trust investment rules were changed to expand investment options.
NEBRASKA OPINIONS
The case of Canas-Luong v. Americold Realty Trust, 22 Neb. App. 999 (2015), confirmed that an employee is not at MMI until all conditions are at MMI and no permanency is due for one condition until all conditions are at MMI. The trial court found claimant was not at MMI for her psychological injury and awarded ongoing TTD, but also awarded PPD for an upper extremity impairment. The Court of Appeals reversed the award of the member impairment, noting that not only was the employee not at MMI for all conditions, that impairment may be factored into her overall loss of earning capacity once she did reach MMI for all conditions pursuant toBishop v. Specialty Fabricating Co., 277 Neb. 171, 760 N.W.2d 352 (2009), andMadlock v. Square D Co., 269 Neb. 675, 695 N.W.2d 412 (2005).
TALES FROM THE TRENCHES
The Omaha office successfully defended an attempt by a plaintiff to strike a counterclaim filed by the employer. Filing counterclaims is a useful procedural tool to ensure a hearing on the merits is had if either party believes one is necessary, and is very valuable. A different trial judge recently struck a counterclaim, which created some question on whether the practice could continue. The favorable ruling supports its use and stems the concern that the Court as a whole may shift to disallow it.
For more information regarding counterclaims contact Jennifer Caswell in our Omaha, NE office.
Jennifer.Caswell@Ritsema-Lyon.com or 402.505.4630
Effective January 1, 2015, the mileage rate is $0.575. The maximum benefit rate for accidents occurring on or after January 1, 2015, is $761.00
Our Omaha office has a new address effective January 14, 2014. The new address is 17330 West Center Road, Suite 110-355, Omaha, NE 68130. All phone and fax numbers remain the same. Please update your records!
Jennifer Caswell successfully defended a claim arguing the injury was temporary and minor. The judge restricted claimant to benefits already paid and denied additional extensive temporary benefits and potential permanent benefits. Ms. Caswell also successfully defended a permanent total disability claim brought by a 49 year old claimant, thereby avoiding large permanency exposure. Judge Fitzgerald also declined to award any future medical treatment in that case.
Ritsema & Lyon is proud to announce U.S. News & World Report selected us as a 2014 Tier 1Best Lawyers® “Best Law Firm” in Workers’ Compensation Law – Employer. This is the second year Ritsema & Lyon received this recognition. Here is just one sampling of some of the great things our clients had to say: “Ritsema & Lyon is the household name for workers’ compensation law in the community. Their attorneys are of the utmost quality with customer service being a top priority… They are truly a top notch firm.” We are deeply appreciative to our clients for their feedback. We strive to provide this type of service to each and every client. Receiving recognition based on such positive feedback is a great honor!
Jennifer Caswell andErin Fox successfully obtained a reversal of the trial court’s award of medical and indemnity benefits to the claimant following an appeal. The trial court awarded additional medical evaluation and ongoing temporary total disability benefits. The Nebraska Court of Appeals agreed with the employer’s argument that there was insufficient evidence in the record to support the trial court’s finding that the employee’s work caused her injury. The Court also agreed that some portions of the trial court’s decision were clearly erroneous. Therefore, the decision was reversed in full and no benefits were due.
Roness v. Wal-Mart Stores, 21 Neb. App. 211 (2013).
The trial court was presented with two theories of recovery: a specific incident or repetitive trauma. Presenting both theories is permissible under Nebraska law. The Court found that the trial judge only expressly addressed the specific incident claim, and it remanded the case for a reasoned decision pursuant to Rule 11, which required a specific finding on claimant’s alternate theory of recovery that repetitive trauma caused her injury.
Hadfield v. Nebraska Med. Ctr., 21 Neb. App. 20 (2013).An employee could not recover permanent partial disability for injury to two members in the same accident. The employee’s injuries occurred before the operative date of the amendment to Neb. Rev. Stat. 48-121(5), which allowed recovery for a loss of earning capacity under certain circumstances where an employee sustains injury to two members in the same accident, rather than the prior recovery which was based on impairment and the established schedule. The amendment was substantive and the LOEC option for recovery when two members are injured in the same accident is only available for injuries occurring after January 1, 2008.
Smith v. Mark Chrisman Trucking, 285 Neb. 826 (2013).
A claim by an employee injured by the willful negligence of the employer is subject to the exclusive remedy provision and the employee can only recover under the Workers’ Compensation Act. In this case, the employer told the employee to shovel grain in a grain elevator. The employee died of asphyxiation. Though the Court found the employer’s actions to be egregious, the employee was limited to recovery for workers’ compensation and not in tort.
Estate of Teague v. Crossroads Co-Op Assn., 286 Neb. 1 (2013).
A settlement check sent 42 days after a release of liability form (for a settlement where Court review is not required) was filed with the compensation court was not subject to the 50% waiting time penalty for late payment after more than 30 days after the entry of an award, judgment, or decree. The employee waives a right to penalty by filing the release.
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49 (2013).
Plaintiff claimed bilateral shoulder injuries on the same date. Defendant admitted bilateral shoulder injuries. The parties stipulated that claimant sustained bilateral shoulder injuries, and said stipulation was incorporated in the trial court’s pretrial order. However, upon review of the evidence, the trial court rejected the stipulation (and Defendant’s admissions) and found that the left shoulder was not compensable, and therefore, claimant was not permanently totally disabled. The Court of Appeals reversed, indicating there was no good cause to reject the stipulation even if the evidence supported a finding the left shoulder was not compensable. It remanded for a determination of the extent of any permanent disability as a result of the agreed-upon bilateral shoulder injury.
Cervantes v. Omaha Steel Castings Co., 20 Neb. App. 695 (2013).