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.
An award of future medical treatment can include procedures not contemplated at the time of the award but the claimant must still prove they are related to the compensable accident and injury. It is a factual determination that will be upheld if there is evidence in the record to support the decision. The claimant had longstanding knee problems aggravated by a work accident. In 2008, the Court awarded future medical for the right knee. At the time a total knee replacement was not contemplated. When it was recommended, the employer disputed that it was included in the award and that it was reasonable and necessary as a result of the aggravation. Initially the trial court denied the surgery and that was appealed and remanded because while the surgery was not contemplated at the time of the 2008 award, the trial court did award future medical treatment. On remand the trial court held that the surgery was not related to the work aggravation, which was supported by an expert report and other medical records, and the decision was affirmed.
Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568 (2013).
The Nebraska Court of Appeals confirmed that an award of vocational rehabilitation was premature absent a finding the claimant was at MMI. The Court also held the trial court implicitly found claimant did not abandon his job when he refused to take a position he believed was outside his temporary restrictions. Claimant testified he could not perform the position and the employer testified claimant was terminated for refusing to perform the position pending evaluation of whether it was within his restrictions. The testimony provided a factual basis for the trial court to find claimant did not abandon his employment and the award of temporary disability was supported. The Court also reversed the offset of claimant’s temporary benefits with his unemployment compensation as that is contrary to Nebraska law.
Hernandez v. JBS, 20 Neb. App. 634 (2013).
The Nebraska Court of Appeals affirmed the trial court’s finding of a recurrence as there was no evidence of a second accident, just continued flare-ups from the original injury. The trial court found that claimant originally sustained a 20% loss of earning capacity. A small portion of the permanent partial disability benefits were paid late and underpaid, and the trial court awarded a small penalty with interest and attorney’s fees. While the trial court did find that the recurrence resulted in a 40% loss of earning power it declined to award additional permanent disability. The Court of Appeals reversed, indicating that the permanent disability weeks should be paid at 40% with credit for the 20% paid. It also reversed the award of penalties, interest, and fees, finding that the action was not a modification (there was no prior settlement or award) and that the two opinions of 20% and 40% created a reasonable controversy that insulated the employer from penalties.
Tuttle v. Bunge Milling, 20 Neb. App. 615 (2013).
When an employee moves for legitimate reasons, but labor market research cannot be performed in the new hub community, the community at the time of injury should be used. Here, because the appointed counselor could not perform labor market research in the town in Mexico where claimant moved, the trial court erred in finding the hub for determining loss of earning capacity (LOEC) was Mexico. The Court also held that in a modification action to terminate a running TTD award, the employer’s burden of proving a decrease in incapacity was satisfied by showing the claimant reached MMI. The burden of proving entitlement to permanency remained with claimant.
Jennifer Caswell successfully defended a case involving a claimed low back injury. Claimant indicated to co-workers that there was a non-work cause. Ms. Caswell’s presentation of the witnesses and her cross-examination of the claimant demonstrated that claimant was not credible. Judge Stine entered an order of dismissal with prejudice. Therefore, the employer did not have to pay any temporary disability, medical expenses, or permanent disability, nor was it ordered to pay the attorney fee in excess of $11,000.00 claimed by opposing counsel.
In another case,Jennifer Caswell obtained an order of dismissal when she successfully argued that no compensable injury or aggravation occurred and any disability or symptoms claimant had were related to a pre-existing degenerative condition. Had Judge Fridrich found for claimant on causation, her permanency award would very likely have been permanent total disability with a present value of almost $650,000.00, plus additional exposure for medical treatment.
Insurer sent settlement payment to the employer’s attorney on the 30th day after entry of an order approving lump sum settlement. However, the payment was not delivered to counsel for the employee until the 31st day after the lump sum order was entered. The Court of Appeals held that a 50% penalty on the $265,000.00 settlement check was due. Had the adjuster sent the check via UPS directly to counsel for plaintiff there would be no penalty due, even though it arrived on the 31st day, because it was sent within 30 days as required byBrown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, (2004).
Harris v. Iowa Tanklines, Inc.,20 Neb. App. 513 (2013)
The Nebraska Supreme Court held that illegal aliens are covered under the Nebraska Workers' Compensation Act. An award of permanent total disability is not precluded by a claimant's illegal status, even if they choose to stay in the US illegally. A prior case held that vocational rehabilitation could not be awarded to a claimant who was not authorized to work in the US yet intended to stay. However, the Court distinguished indemnity from vocational rehabilitation benefits, noting that there is no statutory priority that must be satisfied regarding ability to return to work as a predicate to an award of indemnity, as there is for vocational rehabilitation. The Court also reasoned that denying indemnity to illegal aliens would give an unfair advantage to employers who broke the law by employing the injured worker, because they would not have to pay indemnity. Finally, the Court upheld the finding that claimant's right foot injury (with CRPS) caused injury to his back, and thus he sustained a body as a whole injury. The Court noted that older cases on the issue hinted that there must be some extraordinary circumstance for such a finding. However the recent trend is to allow a finding of injury to the body when the effects of the member injury extend beyond the member itself, if expert opinion supports the claim.
Moyera v. Quality Pork International, 284 Neb. 963 (2013).
In Wissing v. Walgreen Company, 20 Neb. App. 334 (2012), the Nebraska Court of Appeals addressed the latent and progressive exception to the two-year statute of limitations in workers’ compensation cases. Claimant had a compensable shoulder injury in January 2007. He reached MMI with permanent impairment in March 2008; there was a notation the claimant would continue to have some shoulder pain. In July 2010, more than two years from the date of last payment of compensation, claimant had an increase in pain over what he expected. He was ultimately diagnosed with a cervical condition. The trial court found that the conditions were latent and progressive, and thus were not barred by the statute of limitations, because the petition was filed within two years of the time the condition became apparent, and the Court of Appeals affirmed. While claimant was told to expect a certain amount of continuing pain in his shoulder, he had an increase in pain that was unexpected, which was when the condition was apparent. One medical expert opined that the neck injury was compensable as a result of the 2007 incident because of the reported symptomsat the time of the initial diagnosis, even though only a shoulder injury was diagnosed. This suggests the neck condition was reasonably discoverable at that time (since he had symptoms suggesting it). However, the Court of Appeals analyzed it from the claimant’s perspective and the misdiagnosis or incomplete diagnosis at the time of injury did not make the condition reasonably discoverableby the claimant at that time, even if it may have been reasonably discoverable by the physician.
The Nebraska Workers’ Compensation Court has announced that the new mileage rate effective January 1, 2013, is $.565.
The Governor of Nebraska signed LB151 into law of May 25, 2011. The legislation eliminated the intermediary three-judge Review Panel. The legislation goes into effect three (3) months from the adjournment of the legislative session or on August 27, 2011. Therefore, appeals from decisions of the Nebraska Workers’ Compensation Court after August 27, 2011, will go directly to the Nebraska Court of Appeals.
Effective July 1, 2011, the mileage rate will become 55.5 cents per mile for travel to seek medical treatment or while participating in a vocational rehabilitation plan.