If you believe your typical insurance adjuster, the only way an employee can get paid money benefits is if a doctor has assigned permanent impairment and/or restrictions for a work injury.

At least in Nebraska, a competent workers’ compensation lawyer would tell you that a judge can take a workers’ testimony about their injury and ability to work when deciding to pay money benefits for either temporary or permanent disability.

But what often goes unmentioned in this discussion, is how employer’s perception of their injured workers’ ability to work factors into decisions to pay money benefits to injured workers.

So how does what an employer thinks about an employee’s injury factor into how money benefits get paid in Nebraska workers’ compensation cases?

Temporary disability

Employees are paid temporary disability while they are under doctors’ treatment, recovering from an injury and unable to work because of a work injury. Conventional wisdom holds that temporary disability ends when a medical doctor states an employee is at maximum medical improvement or MMI.

But who really decides whether an employee can work or not? The employer. In practice, nurse case managers will coordinate with an insurer/claims administrator and employers to sync the MMI date with when the employer thinks they have a job for an employee.

“Personal conditions” and temporary disability

Often times an employee will be unable to do their job after the mythical MMI date. (MMI is something decided by a judge anyway) Sometimes employers/insurers will argue that an employee is unable to work because of personal condition. In reality an employer may have pushed an employee to return to work too quickly and/or pushed for inaccurate work restrictions.

But regardless of whether an employer believes an employee can’t work because of a work injury or a non-work related injury, they still believe that the injured employee is unable to work for them. Ultimately, it’s up to a workers’ compensation court judge to decide whether the condition preventing an employee from working is related to work or not. However, the decision to pay temporary benefits turns in a substantial part about the court’s view of how the employer views the employee’s ability to work.

Permanent disability

Per Neb. Rev. Stat. 48-121(3), back injuries, head injuries, mental injuries, burns and multiple body part injuries are paid on how the injury effects a persons ability to earn wages. An employer admission that an employee can’t work for them anymore can often be evidence of what is more formally called loss of earning capacity. Even an admission that an employee who is still employed at the same or higher wage is working a lighter job can be evidence of loss of earning power.

Vocational rehabilitation benefits

Employees can receive money benefits if they are participating in a vocational rehabilitation program. Again the decision about whether an employee gets vocational rehabilitation benefits often hinges on whether an employer can or is willing to accommodate the permanent effects of an employees injury. (Employees can also get vocational rehabilitation for so-called single member injuries like shoulders, knees and feet)

Why employer perception of employee work ability sometimes gets overlooked in workers’ compensation cases.

I have had five workers’ compensation trials this year. Employer representatives only testified in two of those hearings. In two of my trials, my client was the only live witness. I think this is typical of how trials usually go. Employee testimony is usually used to help the court understand the basis for the medical reports that are introduced into evidence before testimony and to judge the credibility of the injured workers.

Sometimes employers are almost irrelevant to the issues the court needs to decide. But sometimes, I think defendants keep the employer off the stage in order to focus attention on what they perceive as a flawed plaintiff and to keep the focus off potentially questionable conduct by the employer.

Employers often start their attack on a plaintiff’s credibility with a deposition. Depositions are expensive, but most defendants are insurance companies or self-insureds with deep pockets. Plaintiffs in workers’ compensation claim don’t have deep pockets, so a different cost-benefit analysis applies when deciding whether the depose an employer witness.

But a plaintiff may be able to subpoena that witness to testify at trial for far less cost and should be able to use written discovery like interrogatories, requests for production and requests for admission to conduct an adverse or hostile examination to prove up a clients case for workers’ compensation benefits with admissions from employers.