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.
NEWS
RITSEMA & LYON WEBINAR – MEDICARE SET ASIDES
Ritsema & Lyon is hosting a webinar on Medicare set asides. The webinar is scheduled for Thursday July 23, 2015 from 9:00 a.m. - 10:30 a.m. MDT. Delores Dafoe will be discussing the ins & outs of preparing and handling MSAs. Check out the Events section of our website, www.Ritsema-Lyon.com, for more information and to register. Please contact Jennie Smith atJennie.Smith@Ritsema-Lyon.com or 303.297.7275 with any questions.
22nd ANNUAL SEMINAR
Ritsema & Lyon’s 22nd Annual Workers’ Compensation Seminar will be held on Friday, August 28, 2015, at the Doubletree by Hilton Hotel in Denver. Full itinerary and invitation coming soon. Contact Jennie Smith atJennie.Smith@Ritsema-Lyon.com or 303.297.7275 with any questions.
NEBRASKA UPDATE
NEW LEGISLATION PASSED
LB480, discussed in our May 2015 newsletter was passed. The changes are as follows:
Benefits can be denied when an employee knowingly and willfully made false statements regarding his or her physical or medical condition by acknowledging that he or she is able to perform the essential functions of a job based on the employer’s job descriptionwhen such misrepresentation caused further injury.
Employers are not responsible for any finance charges or late penalty payments as a result of medical services rendered by a provider.
The interest rate applicable to late payments is now 6 percentage points above the bond investment yield, as published by the U.S. Secretary of Treasury, which is currently 2.137 percent.
Workers’ compensation trust investment rules were changed to expand investment options.
NEBRASKA OPINIONS
The case of Canas-Luong v. Americold Realty Trust, 22 Neb. App. 999 (2015), confirmed that an employee is not at MMI until all conditions are at MMI and no permanency is due for one condition until all conditions are at MMI. The trial court found claimant was not at MMI for her psychological injury and awarded ongoing TTD, but also awarded PPD for an upper extremity impairment. The Court of Appeals reversed the award of the member impairment, noting that not only was the employee not at MMI for all conditions, that impairment may be factored into her overall loss of earning capacity once she did reach MMI for all conditions pursuant toBishop v. Specialty Fabricating Co., 277 Neb. 171, 760 N.W.2d 352 (2009), andMadlock v. Square D Co., 269 Neb. 675, 695 N.W.2d 412 (2005).
TALES FROM THE TRENCHES
The Omaha office successfully defended an attempt by a plaintiff to strike a counterclaim filed by the employer. Filing counterclaims is a useful procedural tool to ensure a hearing on the merits is had if either party believes one is necessary, and is very valuable. A different trial judge recently struck a counterclaim, which created some question on whether the practice could continue. The favorable ruling supports its use and stems the concern that the Court as a whole may shift to disallow it.
For more information regarding counterclaims contact Jennifer Caswell in our Omaha, NE office.
Jennifer.Caswell@Ritsema-Lyon.com or 402.505.4630
Effective January 1, 2015, the mileage rate is $0.575. The maximum benefit rate for accidents occurring on or after January 1, 2015, is $761.00
Our Omaha office has a new address effective January 14, 2014. The new address is 17330 West Center Road, Suite 110-355, Omaha, NE 68130. All phone and fax numbers remain the same. Please update your records!
Jennifer Caswell successfully defended a claim arguing the injury was temporary and minor. The judge restricted claimant to benefits already paid and denied additional extensive temporary benefits and potential permanent benefits. Ms. Caswell also successfully defended a permanent total disability claim brought by a 49 year old claimant, thereby avoiding large permanency exposure. Judge Fitzgerald also declined to award any future medical treatment in that case.
Ritsema & Lyon is proud to announce U.S. News & World Report selected us as a 2014 Tier 1Best Lawyers® “Best Law Firm” in Workers’ Compensation Law – Employer. This is the second year Ritsema & Lyon received this recognition. Here is just one sampling of some of the great things our clients had to say: “Ritsema & Lyon is the household name for workers’ compensation law in the community. Their attorneys are of the utmost quality with customer service being a top priority… They are truly a top notch firm.” We are deeply appreciative to our clients for their feedback. We strive to provide this type of service to each and every client. Receiving recognition based on such positive feedback is a great honor!
Jennifer Caswell andErin Fox successfully obtained a reversal of the trial court’s award of medical and indemnity benefits to the claimant following an appeal. The trial court awarded additional medical evaluation and ongoing temporary total disability benefits. The Nebraska Court of Appeals agreed with the employer’s argument that there was insufficient evidence in the record to support the trial court’s finding that the employee’s work caused her injury. The Court also agreed that some portions of the trial court’s decision were clearly erroneous. Therefore, the decision was reversed in full and no benefits were due.
Roness v. Wal-Mart Stores, 21 Neb. App. 211 (2013).
The trial court was presented with two theories of recovery: a specific incident or repetitive trauma. Presenting both theories is permissible under Nebraska law. The Court found that the trial judge only expressly addressed the specific incident claim, and it remanded the case for a reasoned decision pursuant to Rule 11, which required a specific finding on claimant’s alternate theory of recovery that repetitive trauma caused her injury.
Hadfield v. Nebraska Med. Ctr., 21 Neb. App. 20 (2013).An employee could not recover permanent partial disability for injury to two members in the same accident. The employee’s injuries occurred before the operative date of the amendment to Neb. Rev. Stat. 48-121(5), which allowed recovery for a loss of earning capacity under certain circumstances where an employee sustains injury to two members in the same accident, rather than the prior recovery which was based on impairment and the established schedule. The amendment was substantive and the LOEC option for recovery when two members are injured in the same accident is only available for injuries occurring after January 1, 2008.
Smith v. Mark Chrisman Trucking, 285 Neb. 826 (2013).
A claim by an employee injured by the willful negligence of the employer is subject to the exclusive remedy provision and the employee can only recover under the Workers’ Compensation Act. In this case, the employer told the employee to shovel grain in a grain elevator. The employee died of asphyxiation. Though the Court found the employer’s actions to be egregious, the employee was limited to recovery for workers’ compensation and not in tort.
Estate of Teague v. Crossroads Co-Op Assn., 286 Neb. 1 (2013).
A settlement check sent 42 days after a release of liability form (for a settlement where Court review is not required) was filed with the compensation court was not subject to the 50% waiting time penalty for late payment after more than 30 days after the entry of an award, judgment, or decree. The employee waives a right to penalty by filing the release.
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49 (2013).
Plaintiff claimed bilateral shoulder injuries on the same date. Defendant admitted bilateral shoulder injuries. The parties stipulated that claimant sustained bilateral shoulder injuries, and said stipulation was incorporated in the trial court’s pretrial order. However, upon review of the evidence, the trial court rejected the stipulation (and Defendant’s admissions) and found that the left shoulder was not compensable, and therefore, claimant was not permanently totally disabled. The Court of Appeals reversed, indicating there was no good cause to reject the stipulation even if the evidence supported a finding the left shoulder was not compensable. It remanded for a determination of the extent of any permanent disability as a result of the agreed-upon bilateral shoulder injury.
Cervantes v. Omaha Steel Castings Co., 20 Neb. App. 695 (2013).
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.