what’s new in workers’ compensation (that you might care about) dallas d. jones baylor, evnen,...

What’s New in Workers’ Compensation

(that you might care about)Dallas D. Jones

Baylor, Evnen, Curtiss, Grimit & Witt, LLP

Confident and Intelligent Legal Solutions

Undocumented Workers’

Moyera v. Quality Pork International284 Neb. 963, 825 N.W.2d 409 (January 2013)

• The Nebraska Supreme Court held that illegal immigrants can be awarded permanent total disability benefits under the Nebraska Workers’ Compensation Act, but they cannot be awarded vocational retraining

• The Court noted that the definition of “employee” contained in the Nebraska Workers’ Compensation Act includes “aliens”

• Because the Nebraska Legislature has not further defined the term “alien” to include only legal aliens, the Court held that the term “alien” must be read to include both legal aliens and illegal aliens


Moyera v. Quality Pork International284 Neb. 963, 825 N.W.2d 409 (January 2013)

• The Court’s decision expands upon a 2009 Nebraska Court of Appeals decision, Visoso v. Cargill Meat Solutions, which held that illegal immigrants are covered by the Nebraska Workers’ Compensation Act and are therefore eligible for temporary total disability benefits

• The Court also clarified its previous ruling in Ortiz v. Cement Products regarding the availability of vocational retraining to illegal immigrants, making clear that regardless of whether the undocumented employee plans to stay in or leave the United States, he is ineligible for vocational retraining



Exclusive Remedy Doctrine

Estate of Teague v. Crossroads Coop.286. Neb 1, 834 N.W.2d 236 (May 2013)

• Teague was asphyxiated and killed after he was told by his supervisor to enter a grain bin to shovel grain into the center of the bin’s conical base

• Violated numerous OSHA regulations

• The personal representative of Teague’s estate filed a wrongful death and assault and battery action against Teague’s employer in District Court

• The District Court dismissed the action for failure to state a claim, finding that the incident resulting in Teague’s death was an “accident” under the Nebraska Workers’ Compensation Act and therefore the exclusive remedy doctrine barred recovery in District Court


Estate of Teague v. Crossroads Coop.286. Neb 1, 834 N.W.2d 236 (May 2013)

• The Nebraska Supreme Court affirmed the district court’s dismissal

• The Court found that, although the employer willfully violated safety regulations which resulted in the death of Teague, the exclusive remedy doctrine applies and therefore the estate’s only means of recovery was under the Nebraska Workers’ Compensation Act



Just Pay the Money!(or else)

Harris v. Iowa Tanklines20 Neb. App 513, 825 N.W.2d 457 (February 2013)

• The parties submitted a lump sum settlement in the amount of $315,000

• $50,000 was paid directly to Harris, leaving a balance of $265,000 due under the settlement

• 30 days after the Compensation Court approved the settlement, Iowa Tanklines issued a check payable to Harris but sent it to the office of Iowa Tanklines’ counsel via overnight delivery

• Harris’ counsel picked up the check from the office of Iowa Tanklines’ counsel the next day (31 days after the settlement)


Harris v. Iowa Tanklines20 Neb. App 513, 825 N.W.2d 457 (February 2013)

• The Court of Appeals reiterated that Neb. Rev. Stat. § 48-125(1) requires that payment be sent directly to the person entitled to compensation, or his or her designated representative, within 30 days

• Although the check was properly issued on the 30th day, it was not issued directly to Harris or Harris’ counsel, and was thus one day late, entitling Harris to a 50% penalty

• The Court noted that had the check been issued to defense counsel earlier and allowed pick-up by the 30-day deadline, there would be no penalty

• Additionally, if the check had been issued on the deadline directly to Plaintiff’s counsel, there would be no penalty


Holdsworth v. Greenwood Farmers Coop.286 Neb. 49, 835 N.W.2d 30 (June 2013)

• The parties filed a Release, settling Holdsworth’s claim, and the Compensation Court dismissed

• Payment of the settlement was sent 42 days after the Release was filed and the Order of Dismissal was entered

• Holdsworth then filed a motion for penalties because the payment of the settlement was received more than 30 days after the Release was filed and the Motion to Dismiss was entered

• The Compensation Court granted Holdsworth’s motion and ordered the employer to pay a 50% penalty and attorney’s fees


Holdsworth v. Greenwood Farmers Coop.286 Neb. 49, 835 N.W.2d 30 (June 2013)

• The Nebraska Supreme Court ruled that the penalty provisions of Neb. Rev. Stat. § 48-125 are not applicable to workers’ compensation settlements finalized by a Release of Liability under Neb. Rev. Stat. § 48-139(3)

• Neb. Rev. Stat. § 48-139(3) states an injured worker, by filing a Release of Liability, “waives all rights under the Nebraska Workers’ Compensation Act, including, but not limited to:…[t]he right to ask a judge of the compensation court to decide the parties’ rights and obligations”

• Would this allow an employer “to indefinitely delay payment”? The Court said no, that this could be avoided by the injured worker not signing and producing the Release until the lump sum payment is received



LB 961

• Trial Attorneys less interested in Releases• So LB 961 made the rules applicable to Court

Approved Settlements the same as Releases• Pay the money in 30 days or else . . .


Final Orders

Jacobitz v. Aurora Cooperative287 Neb. 97, 841 N.W.2d 377 (December 2013)

• Jacobitz was injured while cleaning up after a customer appreciation event held by Aurora Co-Op, his employer

• The Co-Op claimed Jacobitz was not working for the Co-Op at the time of the accident, but had merely volunteered to help

• The trial court granted Jacobitz’ motion to bifurcate the trial and to first determine only whether the injury occurred in the scope of his employment

• The Court found he was in the scope of his employment and scheduled a telephone conference for a later date to set a trial date for the purposes of determining benefits

• The Co-Op filed a notice of appeal before the second hearing was held


Jacobitz v. Aurora Cooperative287 Neb. 97, 841 N.W.2d 377 (December 2013)

• For an appellate court to acquire jurisdiction of an appeal, the appealing party must be appealing from a final order

• While a party can appeal an order from the Workers’ Compensation Court if it affects a substantial right of the appealing party, the Supreme Court recognized a line of cases that state that an order from the Workers’ Compensation Court is not final if the Court reserves some issues for later determination

• The Supreme Court determined that the trial Court’s order was not final and dismissed the appeal

• “A Workers’ Compensation Court’s finding of a compensable injury or its rejection of an affirmative defense without a determination of benefits is not an order that affects an employer’s substantial right in a special proceeding.”



To Offset, or not to Offset, that is the Question

Hernandez v. JBS USA20 Neb. App 634, 828 N.W.2d 765 (March 2013)

• After recovering from his injury, JBS returned Hernandez to work

• Hernandez was transferred to a new position, which he claimed was outside of his restrictions, and was later fired

• He claimed he was terminated because he could not perform his job duties

• JBS argued that Hernandez was terminated because he refused to do any job, was insubordinate, and voluntarily walked off the job

• After his separation from JBS, Hernandez collected unemployment benefits and continued to complain of pain

•Surgery was recommended, but denied


Hernandez v. JBS USA20 Neb. App 634, 828 N.W.2d 765 (March 2013)

• The Compensation Court found that Hernandez was not at MMI since he still needed surgery, but that his TTD benefits after his separation from JBS should be reduced by the amount of unemployment benefits he collected

• He was also awarded vocational rehabilitation

• The Nebraska Court of Appeals found that the award of vocational rehabilitation was improper because Plaintiff was not at MMI

• The Court also held that it was improper for the Compensation Court to reduce the amount of TTD awarded by the unemployment benefits that Hernandez collected

• The Court noted that any set-off or reduction of benefits would be taken from unemployment benefits rather than workers’ compensation benefits



Expert Testimony—How Much is Enough?

Veatch v. American Tool676 N.W.2d 730, 267 Neb. 711 (2004)

• The Daubert standard, that: – Expert opinions are admissible only if standard of

reliability met—they must be RELIABLE– . . . does not apply in Workers’ Compensation

Cases

21

Roness v. Wal-Mart21 Neb. App. 211, 837 N.W.2d 118 (August 2013)

• Roness alleged bilateral carpel tunnel syndrome from repetitive use while employed by Wal-Mart

• In support of her claim, Roness relied on the opinion of a physician’s assistant in which the PA specifically indicated that Roness has carpal tunnel syndrome, but explicitly indicated that she “cannot say that it was caused by [Roness’] work” and that “the repetitive motions that [Roness] does at work will cause this condition to be aggravated”

• The Compensation Court allowed the evidence from the PA and found that Roness met her burden of proof based on the opinions of both the physician’s assistant and an opinion by Dr. Gilles


Roness v. Wal-Mart21 Neb. App. 211, 837 N.W.2d 118 (August 2013)

• The Court of Appeals declined to decide the issue of whether evidence from a physician’s assistant can be properly admissible pursuant to Rule 10 because, even assuming that all of the evidence received by the Compensation Court was done so properly, there was not sufficient medical evidence to support a causal link between Roness’ injury and her employment

• The Court reiterated that the magic words “reasonable medical certainty” or “reasonable probability” are not required, however, expert medical testimony must be sufficient to establish the crucial causal link between an employee’s injuries and the accident occurring in the course and scope of his/her employment



Really?

Kamarad v. DRK, Inc.2014 WL 398560, No. A-13-471 (February 2014) (not designated for

permanent publication)

• Kamarad worked at a bar and drank “a number” of shots of alcohol

• He fell and injured his head and tailbone

• A toxicologist determined that Kamarad’s blood alcohol content at the time of the fall would have been .221 and therefore he would have been impaired

• Kamarad argued that because there was no testimony as to the cause of his fall, he should have been afforded a presumption that he was acting in “self-preservation” and was exercising “due care and diligence”


Kamarad v. DRK, Inc.2014 WL 398560, No. A-13-471 (February 2014) (not designated for

permanent publication)

• The Court of Appeals rejected Kamarad’s argument, citing a similar case, Sandage v. Adolf’s Roofing, 198 Neb. 539, 254 N.W.2d 77 (1977), in which there was no witness to the injured worker before or during the fall, but there was expert testimony showing the worker’s BAC after the fall was at an intoxicating level

• The Court of Appeals found that the lack of witness testimony or explanation of how Kamarad’s fall occurred did not entitle him to a presumption that he was acting with due care and diligence


Mental-Mental


LB 21(2013)

• Passed and approved by the Governor on March 7, 2013

• Eliminated the sunset provision on mental-mental claims for first responders

• (those where the conditions causing the mental injury were “extraordinary and unusual in comparison to the normal conditions of the particular employment”


LB 297 (2014)

• Would have added coroners to the individuals eligible to receive benefits for mental injuries and mental illness unaccompanied by physical injury under the Nebraska Workers’ Compensation Act

• Not sure what a coroner would have to see to rise to the level of “extraordinary and unusual” in comparison to what coroners normally see . . .

• Died



Money Grab . . .

LB 291(2014)

• Sought to amend Neb. Rev. Stat. § 48-125 to provide a 50% penalty on medical bills not paid “within thirty days after notice has been given” or within 30 days of entry of a final order

• So if $20,000 hospital bill is not paid within 30 days, employee would be entitled to $10,000

• Died



On a Wing and a Prayer . . .

LB 307(2014)

• Would have overridden the doctrine of “beneficent purposes” to eliminate the liberal construction of the Workers’ Compensation Act in favor of employees

• Would allow for suspension of temporary disability benefits or create a rebuttable presumption that such benefits should be terminated in cases in which injured workers:

• Are incarcerated

• Refuse to submit to medical or surgical care recommended by their own physician

• Refuse to accept light-duty work for which they have been recommended by their treating physician


LB 307 cont.• Would provide greater flexibility and fairness for both employers

and employees in cases in which an increase or decrease in compensation is warranted, but the filing of an application for modification of award is delayed

• Died



No, I’m not Kidding . . .

LB 324(2014)

• Would reinstate the defense of employee misrepresentation for employers to avoid having to pay benefits from an injury or condition relating to misrepresentations given by the employee when applying for a position with the employer

• Would allow employees, prior to the time of sustaining an injury, to “opt out” of having first injury reports to their workplace injuries made available for public inspection

• Would base the interest rate applicable to awards of WC benefits on appeal upon the same standard applicable to other money judgments

• Died



. . . because I’m a DOCTOR!

LB 584(2014)

• Would require the scope and duration of medical, surgical, and hospital services to be provided in accordance with the Official Disability Guidelines (ODG) as published by the Work Loss Data Institute

• Would presume any medical, surgical, and hospital services provided in accordance with the ODG to be reasonable

• Would remove responsibility of an insurer, risk-management pool, or self-insured employer for charges for medical, surgical, or hospital services not provided in accordance with the ODG unless the services were provided in a medical emergency, pre-authorized by the insurer, or approved by an independent medical examiner selected by the employer and the employee to resolve disputes regarding the reasonableness of such services

• Died



May I have a “COLA” please?

LB 302(2014)

• Would provide annual adjustments for total disability benefits in proportion equal to annual increases resulting from the determination of the state’s average weekly wage

• The automatically escalating benefits proposed under LB 302 would result in increased costs for employers

• Died



“The ‘shoulder bone’ is connected to the ‘whole body’ bone . . .”

LB 310(2014)

• Would provide that loss of an arm does not include injuries to the shoulder regardless of the location of residual impairment, with injuries to the shoulder to be compensated pursuant to the total and partial disability provisions of the Workers’ Compensation Act, rather than as a scheduled member injury

• Died


Dallas D. [email protected]

QUESTIONS?


what’s new in workers’ compensation (that you might care about) dallas d. jones baylor, evnen,...

Documents

compensation court

intelligent legal solutions

district court confident

nebraska supreme court

undocumented workers

illegal aliens confident

nebraska legislature

llp slide