Key Updates in Workers' Compensation Law
This content covers recent legal developments in workers' compensation law, focusing on undocumented workers' eligibility for benefits and the Exclusive Remedy Doctrine. Key cases such as Moyera v. Quality Pork International and Estate of Teague v. Crossroads Coop are discussed, highlighting significant court decisions and implications for workers' rights. The evolving landscape of workers' compensation, especially in relation to undocumented workers, is explored, shedding light on important legal nuances and considerations for both employers and employees.
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Whats New in Workers Compensation (that you might care about) Dallas D. Jones Baylor, Evnen, Curtiss, Grimit & Witt, LLP
Undocumented Workers Confident and Intelligent Legal Solutions
Moyera v. Quality Pork International 284 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 Confident and Intelligent Legal Solutions
Moyera v. Quality Pork International 284 Neb. 963, 825 N.W.2d 409 (January 2013) The Court s decision expands upon a 2009 Nebraska Court of Appeals decision, Visoso v. CargillMeat 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 Confident and Intelligent Legal Solutions
Exclusive Remedy Doctrine Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
Just Pay the Money! (or else) Confident and Intelligent Legal Solutions
Harris v. Iowa Tanklines 20 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) Confident and Intelligent Legal Solutions
Harris v. Iowa Tanklines 20 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 Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
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 . . . Confident and Intelligent Legal Solutions
Final Orders Confident and Intelligent Legal Solutions
Jacobitz v. Aurora Cooperative 287 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 Confident and Intelligent Legal Solutions
Jacobitz v. Aurora Cooperative 287 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 AWorkers 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. Confident and Intelligent Legal Solutions
To Offset, or not to Offset, that is the Question Confident and Intelligent Legal Solutions
Hernandez v. JBS USA 20 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 Confident and Intelligent Legal Solutions
Hernandez v. JBS USA 20 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 Confident and Intelligent Legal Solutions
Expert TestimonyHow Much is Enough? Confident and Intelligent Legal Solutions
Veatch v. American Tool 676 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-Mart 21 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 therepetitive 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 Confident and Intelligent Legal Solutions
Roness v. Wal-Mart 21 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 reasonableprobability 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 Confident and Intelligent Legal Solutions
Really? Confident and Intelligent Legal Solutions
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 anumber 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 Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
Mental-Mental Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
Money Grab . . . Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
On a Wing and a Prayer . . . Confident and Intelligent Legal Solutions
LB 307 (2014) Would have overridden the doctrine of beneficentpurposes 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 Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
No, Im not Kidding . . . Confident and Intelligent Legal Solutions
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 optout 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 Confident and Intelligent Legal Solutions
. . . because Im a DOCTOR! Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
May I have a COLA please? Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
The shoulder bone is connected to the whole body bone . . . Confident and Intelligent Legal Solutions
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 Confident and Intelligent Legal Solutions
QUESTIONS? Dallas D. Jones djones@baylorevnen.com Confident and Intelligent Legal Solutions
