Anatomy of a Workers’ Anatomy of a Workers’ Compensation ClaimCompensation Claim

Anatomy of a Workers’ Compensation Claim

Bewildered and confused by the process of workers’ compensation, Nicholas hopes to gain an understanding of how to handle work injuries at his place of employment. Luckily there is hope, and Nicholas is not alone. . .

It’s all so confusing! Where do I go for

information?

Nebraska Workers’ Compensation Court

Phone: 800-599-5155

Web address: www.wcc.ne.gov

Now that Nicholas knows where to go for information, he’d like to know about the Worker’s Compensation Court. He calls Judy, a friend of his who works as a supervisor with another company, to see if she’s got the scoop on how the court operates.

Of course I can tell you a little about

the Workers’ Compensation Court. They’ve

helped me out in the past!

Court Structure

Seven Judges

Court Administrator

Clerk of the Court

Legal Counsel

Public Information

Coverage & Claims

Vocational Rehabilitation

Nicholas is feeling much more confident about understanding workers’ compensation. He has also become more handsome. Yet, questions still nag at the corners of his mind. He must have answers . . .

I just don’t know which employers are covered by the Workers’

Compensation Act. Are all

types of workers covered? Are

there any exceptions? Oh the humanity!

The Following ARE covered by the Workers’ Compensation Act:

Employers with one or more employees

Part-time Employees

Minors

Charitable Organizations

The Following ARE NOT covered by the Workers’ Compensation Act:

Federal Employees

Railroad Employees

Some Agricultural Operations

Self-Employed Persons, Sole Proprietors, Partners, L.L.C. Members

Volunteers

Independent Contractors

Who is covered by the Workers’ Compensation Act?

I think I understand most of that. I remember a co-

worker, Sally, who had trouble understanding that ‘Independent Contractor’

classification . . .

Independent Contractor or Employee? Sally’s tale of woe

followed by insight.Norma helps Sally with her dilemma.

I have a worker who was injured on the job. How do I tell if he is an employee or an independent

contractor?

Well Sally, even though the question is determined on a case-by-case basis, there

are some guidelines.Let’s see, where is that list of factors?

Aha! Here it is . . .

How to Determine Independent Contractor Versus Employee

It was no trouble, Sally! I’m glad I could help with your workers’

compensation question!

So that’s how you figure it

out! Thank you!

Nicholas stirs from his

daydream. He must know more .

. .

Hence, Norma helped Sally solve the dilemma of independent contractor versus employee

status.

As compelling as the lesson is, Nicholas becomes impatient . . .

Nicholas would be well advised to table his complaints and be aware that this area of workers’ compensation law is quite complex. Additionally, it involves math.

Look, this is super fascinating, but I’m a busy man. Why don’t you move

along to benefits?!

Now,

on to

BENEFITS

Types of Workers’ Compensation Benefits

Indemnity/Wage Loss

Death Benefits

Medical Expenses

Vocational Rehabilitation

I thought you said this would be

complicated. It’s easy . . .

I’ll tell you how life ain’t so easy for one girl named Sue, but first . . .

Before we get into the nitty gritty of the benefits, can you

explain the waiting period I’ve heard about?

Fred was injured on the job on May 9, 2005.

The waiting period . . .

The first 7 days are not paid unless the employee is

disabled for 6 weeks or more.

Fred was not disabled for 6 or

more weeks. He is entitled to benefits beginning on May

16, 2005.

Now, Sue. . .

I hurt my wrist in an accident arising out of

and in the course of my employment! Sue goes to Dr. Mend.

Because Dr. Mend has taken Sue off work temporarily, she is entitled to Temporary Total Disability Benefits.

TTD is calculated as 2/3 of Sue’s average weekly wage for the six weeks that Sue is off work.

Sue, I’ve examined

your wrist. I’m going to recommend that you be off work for six weeks

due to your wrist injury.

Thank goodness for the Worker’s Compensation Act!!

But how do I figure my

average weekly

wage?!?

“as many of the preceding 26 weeks as the employee worked for that employer”

Vacation weeks (and other off-work weeks) are not counted

Earnings from previous employer are not counted

Earnings from another employer are not counted

Bonuses and fringe benefits are not counted UNLESS part of the hiring agreement

Sue makes $1,500.00 per week. She has made this amount during all of the past 26 weeks . Sue

has an AWW of $1,500.00.

Back to calculating

Sue’s disability benefits!

Sue has an AWW of $1,500. She is entitled to 2/3 of $1,500 for

Temporary Total Disability. This comes to $1,000.

Sue’s employer finds Sue a position within her restrictions, but the new position pays less than Sue made at

her old position.

BUT WAIT!!! Nebraska law sets a maximum weekly benefit for

injuries. The maximum for 2014 is $747.00. Sue can only

receive up to the statutory maximum; her benefits are

capped at $747.00.

So, I’ll be off work for six weeks because of my work injury. That means TTD benefits

are $747.00 per week for the six weeks I’m off work. We’ll see

what Dr. Mend has to say after six weeks. . .

Six weeks later . . .

Well Sue, you’re doing better, but

you’re not quite fully recovered. I am

going to let you go back to work, but

only at light duty for another six weeks.

I can work, but I’ll make less money! Am I entitled

to any more indemnity benefits for my injury?

Because Dr. Mend has allowed Sue to return to work, but with light duty restrictions, she is entitled to Temporary Partial Disability Benefits.

TPD benefits equal 2/3 of the difference in wages at the time of injury and the earning power after the injury.

Sue you have reached maximum medical

improvement because your wrist has healed as much as possible. I’m

afraid, however, that you have a permanent

impairment rating of 10% loss of use of your left

wrist.

What does this impairment rating

mean for my workers’ compensation claim?!

Six weeks later, Sue returns to Dr. Mend . . .

Read on for the answer . . .

Permanent Partial Disability Benefits

Two types of PPD

“Body as a Whole”

Injuries to the trunk, neck, or head.

“Member Injuries”

Loss or loss of use of a member.

300 weeks of PPD benefits for ‘body as a whole’ (inclusive of any weeks of TTD or

TPD).

The number of weeks of PPD for a ‘member

injury’ depends on the type of member

and the amount provided by statute. So, my wrist injury was a

member injury, and my PPD benefits are based on the # of weeks specified

by statute!

Member InjuriesTypes of Injury and Number of Weeks

Member I njury Number of Weeks Thumb 60 I ndex finger 35 Second fi nger 30 Third fi nger 20 Fourth or little finger 15 Great Toe 30 Any other toe 10 Hand below elbow joint 175 Arm at or above elbow 225 Foot below knee 150 Leg at or above knee 215 Loss of 1 eye 125 Hearing loss in one ear 50 Both hands, f eet, arms, legs, ears, eyes, or any two such losses in the same accident

Permanent Total Disability (PTD)

Neb. Rev. Stat. Section 48-121(3)

Poor Sue!

Being hurt at work wasn’t easy for Sue, but if you think that’s bad, let me tell you a story about a man named Jed . . .

One day, while at work, Jed was hit on the head with a piece of equipment. When he regained consciousness, he

was in a great deal of pain.

Ouch!!! That hurt!!!

Unlike Sue, Jed has a ‘body as a whole’ injury because he sustained an injury to his head. Jed is entitled

to 300 weeks (inclusive of TTD or TPD received) for his ‘body as a

whole’ injury.

• inability of employee to “earn wages in the same kind of work” or similar work, or any other kind of work he or she is capable of

• benefits are owed until PTD ceases

• training that helps an employee work again can end PTD

• total loss or total loss of use of two members in one accident is PTD

• “odd lot” employment does not end PTD

Another type of disability benefit is Permanent Total Disability.

That kind of disability benefit sounds

complicated. Good thing it doesn’t

happen very often!

In addition to indemnity benefits, the Workers’ Compensation Act also

provides death benefits.

It’s a good thing Jed and Sue both survived their injuries. What happens if an employee dies as a result of a work-related

accident?

• Burial expenses up to $10,000.00 (July 19, 2012)

• Spouses are entitled to benefits for life or until remarriage

• Children are entitled to benefits until age 19 or until age 25 if they are full-time students

Alright, so we’ve been

through indemnity

benefits and death

benefits. You mentioned something about job training or ‘vocational

rehabilitation’. Can you tell

me more about that?

In order for Nicholas to understand vocational rehabilitation, let’s look in on Veronica the vocational rehabilitation expert. . .

My 4 o’clock client, Stan, should be here any minute. Let’s review his file. Looks like he was unable to

return to his previous job or to any other employment with his previous

training and experience. He was injured at work and he just didn’t

have the physical ability to return to work. Because he had only a high school education, there were no

jobs within his physical abilities that he could do without more training.Stan arrives for his

appointment with Veronica.

Hi Veronica. I’m here to talk about my vocational rehabilitation situation. I’ve requested vocational

rehabilitation services from my employer’s workers’ compensation insurer.

Excellent. Also, in cases where the insurance carrier does not agree to the need for VR services, or to the selection of a particular counselor, the Workers’ Compensation Court

can appoint a counselor.

I see, so where do we start?

• Return to previous job with the SAME employer

• A new job with the SAME employer

• A job with a NEW employer

• A period of formal retraining which is designed to lead to employment in another career field.

Ok, so because I can’t do my old position, and there is no job within my abilities at my same employer, a vocational rehabilitation counselor will help find me a new employer

with a job position within my abilities.

You got it. It’s called “job

placement”.

Well, Stan, first there are some

established priorities for vocational

rehabilitation counselors.

If the job placement doesn’t work and you still aren’t able to find a

job you can do within your restrictions, you could undergo a period of training to gain skills for

a new career.

Cool!

Neat, vocational rehabilitation is easy. So what about doctors. Who picks the

doctor?

EMPLOYEE CHOOSES when:

• Employer does not give notice of choice, or

• Employer gives notice of choice and the employee chooses a ‘family physician’

Choice of Physician Rule 50

EMPLOYER CHOOSES when:

• Employer gives notice of choice and employee fails to choose a ‘family physician’ or makes no choice at all

Once a physician is selected, there

can be NO CHANGE unless

both the employer and

employee agree.

But REMEMBER . . . restrictions on change of physician only apply

when the employer has given the

employee notice of the right to choose!

So we’ve been through just about all of the things employees are entitled to when they are injured on the job. What do you do if there is a dispute as to

an employee’s entitlement to benefits?

There are a few options for resolving a workers’ compensation dispute . . .

Informal Dispute

Resolution

Litigation Before the Workers’

Compensation Court

Please tell me more about each option!

Litigation in the WCC

• Employee may file a petition with the Workers’ Compensation Court

• The petition must be filed within 2 years of the date of the accident or the date of the last payment of compensation

• Upon receipt of the petition, the WCC will notify the employer/insurer

• The defendants have 14 days to answer the employee’s petition

• The case is then set for trial before one of the seven judges of the court

• There are procedures to appeal a trial court decision

Informal Dispute Resolution

• IDR is an alternative to trial

• It is provided by the court at little or no cost to the parties

• It’s speedy

• It’s voluntary and confidential

• It’s available to anyone involved in a workers’ compensation dispute

• IDR is conducted by staff attorneys employed by the Workers’ Compensation Court

Issues settled in IDR

Payment of medical

bills

Compensability of injury

Vocational rehabilitation

Necessity of medical

treatmentChoice or change of physician

IDR sounds like an efficient and effective way to resolve disputes at

little or no cost. And you don’t even need a lawyer to do it!

Reporting an injury

What else should I know?

The employee must notify the employer of the injury ‘as soon as practicable’. Generally, employers notify the insurance

carrier.

Reportable injuries must be reported to the court by the insurance carrier via electronic filing.

Lump Sum Settlements

Workers’ compensation benefits can be paid out periodically (weekly) or in a lump sum settlement

The parties reach an agreement and usually will submit the documents for approval by the court

Generally the employee must have reached MMI and returned to work at the time of the settlement.

Payment of the settlement total must be made within 30 days of the date the court approves the settlement

So Nicholas gained a greater understanding of how

workers’ compensation operates.

He also got to meet some interesting characters along

the way.

If Nicholas has any more questions, he can

always contact . . .

The Nebraska Workers’

Compensation Court

800-599-5155

www.wcc.ne.gov

Now I know the anatomy of a workers’ compensation

claim!

Nebraska Workers’ Compensation Court

800-599-5155

www.wcc.ne.gov