Anatomy of a Workers’ Compensation Claim

Anatomy of a Workers’ Compensation Claim

Anatomy of a Workers’ Compensation Claim It’s all so confusing! Where do I go for information? 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. . .

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 Public Information Court Administrator Coverage & Claims Clerk of the Court Vocational Rehabilitation Legal Counsel

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! 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 . . .

Who is covered by the Workers’ Compensation Act? The Following ARE covered by the Workers’ Compensation Act: • Employers with one or more employees • Part-time Employees • Minors • Charitable Organizations The Following ARENOT 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 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 So that’s how you figure it out! Thank you! It was no trouble, Sally! I’m glad I could help with your workers’ compensation question! Hence, Norma helped Sally solve the dilemma of independent contractor versus employee status. Nicholas stirs from his daydream. He must know more . . .

As compelling as the lesson is, Nicholas becomes impatient . . . Look, this is super fascinating, but I’m a busy man. Why don’t you move along to benefits?! Now, on to BENEFITS 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.

Types of Workers’ Compensation Benefits I thought you said this would be complicated. It’s easy . . . Indemnity/Wage Loss Death Benefits Medical Expenses Vocational Rehabilitation 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? The waiting period . . . Fred was injured on the job on May 9, 2005. 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. OUCH! Now, Sue. . .

A Girl Named Sue Sue, I’ve examined your wrist. I’m going to recommend that you be off work for six weeks due to your wrist injury. I hurt my wrist in an accident arising out of and in the course of my employment! Sue goes to Dr. Mend. Thank goodness for the Worker’s Compensation Act!! BENEFITS But how do I figure my average weekly wage?!? 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.

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 Back to calculating Sue’s disability benefits! 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.

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. 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. . . 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. Six weeks later . . . Sue’s employer finds Sue a position within her restrictions, but the new position pays less than Sue made at her old position. 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?

BENEFITS 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. Six weeks later, Sue returns to Dr. Mend . . . What does this impairment rating mean for my workers’ compensation claim?! 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. Read on for the answer . . .

Permanent Partial Disability Benefits Two types of PPD “Member Injuries” “Body as a Whole” Loss or loss of use of a member. Injuries to the trunk, neck, or head. The number of weeks of PPD for a ‘member injury’ depends on the type of member and the amount provided by statute. 300 weeks of PPD benefits for ‘body as a whole’ (inclusive of any weeks of TTD or TPD). 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 Neb. Rev. Stat. Section 48-121(3)

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 . . . Poor Sue! Jed Hits His Head WHACK! 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.

Another type of disability benefit is Permanent Total Disability. • 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 That kind of disability benefit sounds complicated. Good thing it doesn’t happen very often!

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? In addition to indemnity benefits, the Workers’ Compensation Act also provides death benefits. BENEFITS • 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? Well, Stan, first there are some established priorities for vocational rehabilitation counselors. • 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”.

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? RULE 50

Choice of Physician Rule 50 EMPLOYEE CHOOSES when: • Employer does not give notice of choice, or • Employer gives notice of choice and the employee chooses a ‘family physician’ EMPLOYER CHOOSES when: • Employer gives notice of choice and employee fails to choose a ‘family physician’ or makes no choice at all But REMEMBER . . . restrictions on change of physician only apply when the employer has given the employee notice of the right to choose! Once a physician is selected, there can be NO CHANGE unless both the employer and employee agree.

There are a few options for resolving a workers’ compensation dispute . . . 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? Litigation Before the Workers’ Compensation Court Informal Dispute Resolution 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 Necessity of medical treatment Vocational rehabilitation Choice 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!

What else should I know? Reporting an injury 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!

THE END! Nebraska Workers’ Compensation Court 800-599-5155 www.wcc.ne.gov

Anatomy of a Workers’ Compensation Claim