Tag Archives: Permanent Total Disability

Conventional wisdom about labor shortages works to reduce workers’ compensation payouts

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Elected official and business leaders argue that Nebraska has a labor shortage due in part to a skills gap between the skills employers want and the skills job-seeking employees have. This conventional wisdom has been challenged, but assuming the skills gap and labor shortage argument as either true or persuasive how will that assumption effect workers in Nebraska who suffered serious injuries on the job?

Injured workers in Nebraska who can’t return to their old job because of an injury can make claims for permanent disability and vocational rehabilitation benefits. Permanent disability benefits pay for the loss of ability to work and vocational rehabilitation benefits are used to help injured workers’ return to employment that is close as possible to their former wage.

My view is that as a practical matter, the perception of a labor shortage in Nebraska helps to reduce pay out of permanent disability benefits in workers’ compensation. But I believe that plaintiffs can argue that any supposed labor shortage should be of limited relevance in determining disability in workers’ compensation.

Nebraska’s “labor shortage” and permanent disability

In Nebraska, many types of injuries, including back and neck injuries are paid permanent disability based on a loss of earning power basis. In other words, permanent disability is paid out on how the injury effects the injured workers  ability to work. Loss of earning power, another term for disability, is an economic rather than a medical question.

In July I wrote about the question of which labor market should be used to determine loss of earning power. But assuming you are using the right labor market to determine disability, what other questions should attorneys be asking about an injured workers’ ability to find work?

At least when it comes to proving permanent and total disability under the so-called “odd-lot theory” a court needs to consider the ability of a worker to sell their services in a competitive labor market unaffected by factors like sympathetic employers or “business booms.”

With near record low unemployment in Nebraska in 2019, the question becomes does historically low unemployment constitute a “business boom”? A related question is whether a job market with alleged labor shortages is a competitive labor market for employees?

I believe these questions arise with seriously injured workers who through a combination of lack of skills and serious injury have job prospects limited to relatively low paid and lighter duty jobs. Some vocational counselors will testify that jobs like retail clerk are available and that employers are willing to accommodate restrictions because of the job market.

But in a recession when unemployment is high, are those employers going to be willing to be so accommodating? Probably not. Studies show that employers tend to raise the qualifications for jobs during times of higher unemployment.

I think there could be some arguments to be made against factoring out abnormally low unemployment in loss of earning power analysis. The first argument is that it would only apply in cases where an employee is an odd-lot or permanently and totally disabled, not permanently partially disabled. In other words, the employee who has a 20 percent disability in a really good job market, can’t argue they would have a 40 percent disability if the job market wasn’t as good.

Another argument against not taking an unusually good job market into consideration in determining disability is that it comes off as speculative. Additionally, ability to earn wages can be taken in consideration of determining loss of earning power. An injured worker who has found employment is going to face a hurdle in arguing they are totally disabled or even substantially disabled in some circumstances.

These arguments can be addressed. In Nebraska, the law is supposed to be interpreted liberally in favor of the employee. I believe liberal construction would mean that abnormally low unemployment could be considered even if the injured worker was not an odd-lot employee.

Concerns about speculative loss of earning power opinions based on questions about what the job market could be in the future, can be addressed because expert witnesses can answer hypothetical questions. Also since permanent disability is meant to compensate workers for their permanent loss of earning power, it arguably isn’t fair to base their loss of earning power based on a snap shot of the labor market at one point in time when economic conditions are relatively good.

The hardest hurdle to overcome is the presumption that in a good job market, an employee should be able to find work. Ultimately those questions get down to questions of credibility of the claimant and need to be decided on a case by case basis.

Questioning the assumption of a skills gap and labor shortage in Nebraska

Though you will rarely hear about it from elected officials or media outlets in Nebraska, many economists and writers question the assumption of a skills gap and labor shortage. The question I have is the best way to present those arguments credibly in the Nebraska Workers’ Compensation Court.

But even if you accept the skills gap/labor shortage argument, that should mean that employers should be clamoring for the award of vocational rehabilitation benefits for injured workers. But according to the latest report of the Nebraska Workers’ Compensation Court only 85 vocational rehabilitation plans were opened in fiscal year 2018. I think there are several reasons why so few plans get implemented, that I will discuss at a later time.

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.

This entry was posted in Nebraska, Workers' Compensation and tagged , , , .

Caught in the TTD/PPD squeeze

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Consider these common scenarios after a serious work injury.

An injured employee is done recovering from a surgery but can’t go back to work until they complete a Functional Capacity Evaluation.

An injured employee is done recovering from a spinal fusion surgery and is unable to go back to their old job. Even if on the odd chance they could go back to their old job, they have been off work so long that any job protections available under the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) have long passed.

In both cases an injured worker is likely 1) not getting temporary total disability (TTD) 2) Is not earning wages and 3) Has not started receiving any permanent partial disability (PPD) or permanent total disability (PTD).

Some call it “the gap”, some call it “the squeeze”, but whatever you call it, it’s a painful situation to be in to not have any money coming in after a recovery from an injury.

Workers’ compensation laws in Nebraska are supposed to be interpreted in favor of the employee to effectuate the beneficent purpose of relieving employees of the economic effects of a work injury. How can employers/insurers squeeze injured employees like this?

One answer is that case law may allow this. I am going to cut and paste in the relevant language case law into this blog post in italics. I am going to bold face the language insurers rely on to squeeze injured employees.

Temporary disability ordinarily continues until the claimant is restored so far as the permanent character of his or her injuries will permit. Compensation for temporary disability ceases as soon as the extent of the claimant’s permanent disability is ascertained. In other words, temporary disability should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.

The term “maximum medical improvement,” or MMI, has been used to describe the point of transition from temporary to permanent disability.  Once a worker has reached MMI from a disabling injury and the worker’s permanent disability and concomitant decreased earning capacity have been determined, an award of permanent disability is appropriate.

The argument underlying the squeeze is that TTD ends when a doctor states you have plateaued medically, but you can’t get permanent disability until your disability has been ascertained. This could mean waiting for a permanent impairment rating or it could mean waiting for an FCE, having a doctor endorse the results and then having a vocational counselor determine disability. As Roger Moore at our office pointed out in 2015, the latter process can last months.

I think allowing insurers to exploit the gap between TTD and PPD is an incorrect reading of the law. As I pointed out earlier, it doesn’t effectuate the beneficent purpose of the Nebraska Workers’ Compensation Act. If TTD ends when disability is ascertained, doesn’t disability actually need to be ascertained through assigning either permanent impairment or permanent restrictions and/or a determination of loss of earning power before TTD payments end? Finally, if MMI signals the transition between temporary and permanent disability benefits, isn’t MMI merely the beginning of the end of temporary benefits rather than the end of temporary benefits? Doesn’t the term “transition” account for some time period when disability is being ascertained?

The temporary/permanent squeeze is an issue of great interest to me. While I think the squeeze is a misreading of the law, I am not certain a trial judge or appellate court would see things my way. The issue may have to be resolved in the Legislature, but the issue is one that should be addressed in litigation. I am one attorney who is willing to litigate the issue on behalf of an injured employee.

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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Workers’ Compensation Basics: Payments to Workers and their Families

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Here’s the next installment in the firm’s series that focuses on the basics of the workers’ compensation system. It gives information on how payments to injured workers and/or their families are handled. 

Workers’ compensation generally pays by the week, although it may be paid bi-weekly or monthly in some circumstances. The amount of the payment is established by state laws or statutes, regulation or court decision. 

Family members are paid in the event of the death of a worker arising from an accident or disease. Family members are occasionally paid for providing home-health care.     

The amounts paid and duration of payment varies from state to state. Generally there is a minimum and a maximum. The maximum is usually two-thirds of the gross wages earned, with a limit that is adjusted from time to time. 

To calculate the amount actually paid, most states use average wages for a specified number of weeks or months before the injury, death or disease. 

Payments are made for temporary inability to work, which is generally labeled temporary total disability. There may be a waiting period before payments begin. The waiting period varies from state to state. 

Payments are also made when a worker is temporarily limited to light duty and working either fewer hours or for a lower rate of pay. These benefits are called temporary partial disability. 

Payments are made for permanent inability to work and, if severe enough, some states pay for the worker’s lifetime. Some states do not pay for less than lifetime. These benefits are called permanent total disability. 

Payments are made for permanent reduction of the ability to work. This benefit is normally labeled permanent partial disability. 

Payments that are made for loss of body parts or limited use of body parts are also labeled permanent partial disability. State law establishes the value of the various body parts. 

Payments are less frequently paid while workers are participating in retraining or vocational rehabilitation. This is not a common benefit. 

WORKERS’ COMPENSATION DOES NOT PAY FOR PAIN AND SUFFERING. 

It is important to contact an experienced workers’ compensation lawyer if you have questions or concerns about any of the information shared here. Please read the previous blog posts in the workers’ compensation basics series by clicking on these links: 

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.

This entry was posted in Workers' Comp Basics, Workers' Compensation, Workplace Injury and tagged , , , , , .

Award of permanent total disability in workers comp could still allow finding of disability discrimination

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A California appellate court recently upheld a $1.5m disability discrimination verdict against the City of Los Angeles for discharging a police officer from a light duty position after being found to be 100 percent disabled for the purposes of workers compensation. Though this may seem counter-intiutive to a lay person it makes sense if you know how workers compensation and disability discrimination statutes operate. I believe a similar verdict would be possible in Nebraska.

…disability discrimination claims hinge on whether the employers made a reasonable attempt to accommodate their employees disability.

In short, total disability in workers compensation is a measure of how a person’s limitations effect them in the general labor market, while disability discrimination claims hinge on whether the employers made a reasonable attempt to accommodate their employees disability. Continue reading

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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