Blogger Thomas Robinson recently posted about a North Carolina decision that holds something that is well-established law in Nebraska — a trucker fired by their company for an accident where they were found to be at-fault cannot be denied temporary total disability if they were injured in the accident because of the termination.

The North Carolina court held that allowing an employer determination of fault to deny temporary disability benefits would open the door to abuses by employers. The decision raises interesting but persistent questions about fault in supposedly no-fault workers compensation laws.

Fault is mostly factored out of workers’ compensation laws in favor of certain and defined amounts of compensation for work injuries. This is known as the “grand bargain” of workers’ compensation. It’s safe to say that the North Carolina court believed that allowing employers to penalize negligent employees undercut the grand bargain of workers’ compensation.

Nebraska law goes farther than North Carolina law in this situation. Nebraska law holds that a denial of benefits for ordinary negligence doesn’t even create a reasonable controversy about entitlement to benefits. That means if an employer doesn’t pay TTD they can be subjected to paying attorney fees and a 50 percent penalty on back due benefits.

The so-called penalties and fees provision of Neb. Rev. Stat. 48-125 serves as Nebraska’s version of bad faith laws. One former trial judge of the Nebraska Workers Compensation court described 48-125 as a yipping porch dog in comparison to the more robust bad faith laws in other states.

But when employers are faced with strong penalty and fee arguments, they tend to pay previously disputed TTD benefits. So truckers facing a denial of temporary benefits due to being involved in an at-fault accident have a strong legal hand — at least in the Nebraska Workers Compensation Court.

But do they have other legal hands to play? A termination shortly after a work injury at least creates the appearance of retaliation. It is unlawful to retaliate against a worker for filing a workers compensation claim in Nebraska.

Injured workers face many hurdles to bringing a successful workers’ compensation retaliation claim. But sometimes trucking companies have policies about property damage and lost time accidents that can almost serve as admissions of unlawful intent. These policies are often applied more harshly against new employees who are more likely to get hurt on the job.

One interesting part about the North Carolina decision is that the employer attempted to deny temporary benefits to the worker on the theory that they had declined a light-duty assignment since they were fired. The North Carolina court found that since the termination was related to the accident, that the employer could not meet their burden.

Nebraska gives employers the ability to stop benefits if an employee refuses medical treatment or vocational rehabilitation. But employers have a fairly difficult burden in doing so. The question is whether a light duty assignment would constitute vocational rehabilitation for purposes of the Nebraska workers’ compensation act. Conventional wisdom is that vocational rehabilitation benefits only start when an employee reached maximum medical improvement. I would think that an employer shouldn’t have greater rights over return-to-work issues depending on whether an employee is pre or post-MMI, but I don’t know if a court has determined that issue in Nebraska.