The cruel cost of capping workers’ comp. benefits for elderly workers

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LB 443, introduced by State Senator Joni Albrecht, would end permanent disability benefits for most workers compensation injuries under the Nebraska Workers’ Compensation Act at age 72. The bill would also limit workers injured over the age of 67 to five years of benefits. Currently permanent total disability benefits are lifetime benefits.

There is a lot wrong with this bill. But instead of some legal and economic analysis, I will criticize this bill through the story of a former client.

My former client, Doris Newkirk passed away on July 21, 2013 a few weeks short of her 91st birthday. The last time I saw Doris was on July 10 of that year. Doris had been awarded permanent total disability benefits from a work injury in 2006. Her employers’ workers compensation insurer, Zurich, would check in with her every six months or so.

I provided the private investigator hired by the insurance company with the required professional courtesy. But the thought of “Do they think this 90 year-old woman is out doing Cross-Fit or something” was never far from my mental surface.

Anyway, the last time I saw Doris she was sound asleep in the middle of the morning in a nursing unit. The last time I saw her she was bright and alert in a facility where she lived relatively independently. I politely kicked out the investigator out of her room, who no doubt knew that my client wasn’t going back to work.

I stayed in Doris’ room for a few minutes. I felt attached to her. She was roughly the same age as my late O’ma who lived near the Lone Star Steakhouse by Oak View Mall in Omaha where Doris worked as a host. My Oma liked Lone Star, I wondered if her and O’ma had crossed paths.

I can’t remember how long Doris had worked at Lone Star before her injury on June 13, 2006 at age 83. Doris told the Nebraska Legislature in 2010 she started at Lone Star at age 71. (See her testimony at pages 68-69) But more importantly for the sake of this story, Doris worked because she needed the money.

Doris spent most of her adult life in Lincoln. She was proud of her work at Haviland-Swanson which was a high-end retailer in Lincoln. She didn’t get paid much. Her husband had done fairly well in the insurance industry, but medical expenses related to her husband’s relatively early death ate up the bulk of their savings.

Doris lived off of social security,  some small amount of private retirement and her earnings at Lone Star. She needed to work at age 83.

She also needed the workers’ compensation benefits she started receiving after the injury in 2006. Doris fell and injured multiple body parts after a co-worker accidentally knocked her back while she cleaning a bathroom. Her injury would not have fit into the narrow exceptions to the benefit cap under LB 443.

To their credit, Zurich insurance agreed Doris was permanently and totally disabled for the purposes of workers’ compensation in September 2007. If LB 443 had been the law at that time, her benefit checks would have stopped 10 ½ months before she died.

Doris was a remarkable person. My favorite story about her was when she returned to Lincoln to testify against legislation similar to LB443 in 2010. (See her testimony at pages 68-69 of this attachment) A friend of mine who worked in the Legislature at the time told me the Senator who sponsored the bill, Tom Carlson of Holdrege, spiked the bill after hearing Doris’ testimony and the testimony of other employees like her.

Capping workers’ compensation benefits is just one of many “economically conservative” or “fiscally conservative” measures that make supporters sound reasonable and even serious. But like other grand political economic theories, what sounds good in the abstract doesn’t look good when you apply in the real world. Back in 2009, the lived experience of my client and others like her was able to at least cut through an ideological cage for one state senator.

Let’s hope lived experience can triumph over bloodless economic theory again in 2023.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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