What’s New in
Workers’ Compensation
(that you might care about)
Dallas D. Jones
Baylor, Evnen, Curtiss, Grimit & Witt, LLP
Undocumented Workers’
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Moyera v. Quality Pork International
284 Neb. 963, 825 N.W.2d 409 (January 2013)
• The Nebraska Supreme Court held that illegal immigrants can be
awarded permanent total disability benefits under the Nebraska
Workers’ Compensation Act, but they cannot be awarded vocational
retraining
• The Court noted that the definition of “employee” contained in the
Nebraska Workers’ Compensation Act includes “aliens”
• Because the Nebraska Legislature has not further defined the term
“alien” to include only legal aliens, the Court held that the term
“alien” must be read to include both legal aliens and illegal aliens
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Moyera v. Quality Pork International
284 Neb. 963, 825 N.W.2d 409 (January 2013)
• The Court’s decision expands upon a 2009 Nebraska Court of Appeals
decision, Visoso v. Cargill Meat Solutions, which held that illegal
immigrants are covered by the Nebraska Workers’ Compensation Act
and are therefore eligible for temporary total disability benefits
• The Court also clarified its previous ruling in Ortiz v. Cement Products
regarding the availability of vocational retraining to illegal immigrants,
making clear that regardless of whether the undocumented employee
plans to stay in or leave the United States, he is ineligible for vocational
retraining
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Exclusive Remedy Doctrine
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Estate of Teague v. Crossroads Coop.
286. Neb 1, 834 N.W.2d 236 (May 2013)
• Teague was asphyxiated and killed after he was told by his supervisor
to enter a grain bin to shovel grain into the center of the bin’s conical
base
• Violated numerous OSHA regulations
• The personal representative of Teague’s estate filed a wrongful death
and assault and battery action against Teague’s employer in District
Court
• The District Court dismissed the action for failure to state a claim,
finding that the incident resulting in Teague’s death was an “accident”
under the Nebraska Workers’ Compensation Act and therefore the
exclusive remedy doctrine barred recovery in District Court
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Estate of Teague v. Crossroads Coop.
286. Neb 1, 834 N.W.2d 236 (May 2013)
• The Nebraska Supreme Court affirmed the district court’s dismissal
• The Court found that, although the employer willfully violated safety
regulations which resulted in the death of Teague, the exclusive
remedy doctrine applies and therefore the estate’s only means of
recovery was under the Nebraska Workers’ Compensation Act
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Just Pay the Money!
(or else)
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Harris v. Iowa Tanklines
20 Neb. App 513, 825 N.W.2d 457 (February 2013)
• The parties submitted a lump sum settlement in the amount of
$315,000
• $50,000 was paid directly to Harris, leaving a balance of $265,000 due
under the settlement
• 30 days after the Compensation Court approved the settlement, Iowa
Tanklines issued a check payable to Harris but sent it to the office of
Iowa Tanklines’ counsel via overnight delivery
• Harris’ counsel picked up the check from the office of Iowa Tanklines’
counsel the next day (31 days after the settlement)
Confident and Intelligent Legal Solutions
Harris v. Iowa Tanklines
20 Neb. App 513, 825 N.W.2d 457 (February 2013)
• The Court of Appeals reiterated that Neb. Rev. Stat. § 48-125(1)
requires that payment be sent directly to the person entitled to
compensation, or his or her designated representative, within 30 days
• Although the check was properly issued on the 30th day, it was not
issued directly to Harris or Harris’ counsel, and was thus one day
late, entitling Harris to a 50% penalty
• The Court noted that had the check been issued to defense counsel
earlier and allowed pick-up by the 30-day deadline, there would be no
penalty
• Additionally, if the check had been issued on the deadline directly to
Plaintiff’s counsel, there would be no penalty
Confident and Intelligent Legal Solutions
Holdsworth v. Greenwood Farmers Coop.
286 Neb. 49, 835 N.W.2d 30 (June 2013)
• The parties filed a Release, settling Holdsworth’s claim, and the
Compensation Court dismissed
• Payment of the settlement was sent 42 days after the Release was
filed and the Order of Dismissal was entered
• Holdsworth then filed a motion for penalties because the payment
of the settlement was received more than 30 days after the
Release was filed and the Motion to Dismiss was entered
• The Compensation Court granted Holdsworth’s motion and ordered
the employer to pay a 50% penalty and attorney’s fees
Confident and Intelligent Legal Solutions
Holdsworth v. Greenwood Farmers Coop.
286 Neb. 49, 835 N.W.2d 30 (June 2013)
• The Nebraska Supreme Court ruled that the penalty provisions of Neb.
Rev. Stat. § 48-125 are not applicable to workers’ compensation
settlements finalized by a Release of Liability under Neb. Rev. Stat. § 48139(3)
• Neb. Rev. Stat. § 48-139(3) states an injured worker, by filing a
Release of Liability, “waives all rights under the Nebraska Workers’
Compensation Act, including, but not limited to:…[t]he right to ask a
judge of the compensation court to decide the parties’ rights and
obligations”
• Would this allow an employer “to indefinitely delay payment”? The
Court said no, that this could be avoided by the injured worker not
signing and producing the Release until the lump sum payment is
received
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LB 961
• Trial Attorneys less interested in Releases
• So LB 961 made the rules applicable to Court
Approved Settlements the same as Releases
• Pay the money in 30 days or else . . .
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Final Orders
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Jacobitz v. Aurora Cooperative
287 Neb. 97, 841 N.W.2d 377 (December 2013)
• Jacobitz was injured while cleaning up after a customer appreciation
event held by Aurora Co-Op, his employer
• The Co-Op claimed Jacobitz was not working for the Co-Op at the time
of the accident, but had merely volunteered to help
• The trial court granted Jacobitz’ motion to bifurcate the trial and to first
determine only whether the injury occurred in the scope of his
employment
• The Court found he was in the scope of his employment and
scheduled a telephone conference for a later date to set a trial date
for the purposes of determining benefits
• The Co-Op filed a notice of appeal before the second hearing was held
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Jacobitz v. Aurora Cooperative
287 Neb. 97, 841 N.W.2d 377 (December 2013)
• For an appellate court to acquire jurisdiction of an appeal, the appealing
party must be appealing from a final order
• While a party can appeal an order from the Workers’ Compensation
Court if it affects a substantial right of the appealing party, the Supreme
Court recognized a line of cases that state that an order from the
Workers’ Compensation Court is not final if the Court reserves some
issues for later determination
• The Supreme Court determined that the trial Court’s order was not final
and dismissed the appeal
• “A Workers’ Compensation Court’s finding of a compensable injury
or its rejection of an affirmative defense without a determination of
benefits is not an order that affects an employer’s substantial right
in a special proceeding.”
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To Offset, or not to Offset, that is
the Question
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Hernandez v. JBS USA
20 Neb. App 634, 828 N.W.2d 765 (March 2013)
• After recovering from his injury, JBS returned Hernandez to work
• Hernandez was transferred to a new position, which he claimed was
outside of his restrictions, and was later fired
• He claimed he was terminated because he could not perform his
job duties
• JBS argued that Hernandez was terminated because he refused to
do any job, was insubordinate, and voluntarily walked off the job
• After his separation from JBS, Hernandez collected unemployment
benefits and continued to complain of pain
• Surgery was recommended, but denied
Confident and Intelligent Legal Solutions
Hernandez v. JBS USA
20 Neb. App 634, 828 N.W.2d 765 (March 2013)
• The Compensation Court found that Hernandez was not at MMI since
he still needed surgery, but that his TTD benefits after his separation
from JBS should be reduced by the amount of unemployment benefits
he collected
• He was also awarded vocational rehabilitation
• The Nebraska Court of Appeals found that the award of vocational
rehabilitation was improper because Plaintiff was not at MMI
• The Court also held that it was improper for the Compensation Court
to reduce the amount of TTD awarded by the unemployment benefits
that Hernandez collected
• The Court noted that any set-off or reduction of benefits would be
taken from unemployment benefits rather than workers’
compensation benefits
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Expert Testimony—How Much is
Enough?
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Veatch v. American Tool
676 N.W.2d 730, 267 Neb. 711 (2004)
• The Daubert standard, that:
– Expert opinions are admissible only if standard of
reliability met—they must be RELIABLE
– . . . does not apply in Workers’ Compensation
Cases
21
Roness v. Wal-Mart
21 Neb. App. 211, 837 N.W.2d 118 (August 2013)
• Roness alleged bilateral carpel tunnel syndrome from repetitive use
while employed by Wal-Mart
• In support of her claim, Roness relied on the opinion of a physician’s
assistant in which the PA specifically indicated that Roness has carpal
tunnel syndrome, but explicitly indicated that she “cannot say that it
was caused by [Roness’] work” and that “the repetitive motions that
[Roness] does at work will cause this condition to be aggravated”
• The Compensation Court allowed the evidence from the PA and found
that Roness met her burden of proof based on the opinions of both
the physician’s assistant and an opinion by Dr. Gilles
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Roness v. Wal-Mart
21 Neb. App. 211, 837 N.W.2d 118 (August 2013)
• The Court of Appeals declined to decide the issue of whether
evidence from a physician’s assistant can be properly admissible
pursuant to Rule 10 because, even assuming that all of the evidence
received by the Compensation Court was done so properly, there was
not sufficient medical evidence to support a causal link between
Roness’ injury and her employment
• The Court reiterated that the magic words “reasonable medical
certainty” or “reasonable probability” are not required, however,
expert medical testimony must be sufficient to establish the crucial
causal link between an employee’s injuries and the accident
occurring in the course and scope of his/her employment
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Really?
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Kamarad v. DRK, Inc.
2014 WL 398560, No. A-13-471 (February 2014) (not designated for
permanent publication)
• Kamarad worked at a bar and drank “a number” of shots of alcohol
• He fell and injured his head and tailbone
• A toxicologist determined that Kamarad’s blood alcohol content at the
time of the fall would have been .221 and therefore he would have
been impaired
• Kamarad argued that because there was no testimony as to the cause
of his fall, he should have been afforded a presumption that he was
acting in “self-preservation” and was exercising “due care and
diligence”
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Kamarad v. DRK, Inc.
2014 WL 398560, No. A-13-471 (February 2014) (not designated for
permanent publication)
• The Court of Appeals rejected Kamarad’s argument, citing a similar
case, Sandage v. Adolf’s Roofing, 198 Neb. 539, 254 N.W.2d 77 (1977),
in which there was no witness to the injured worker before or during
the fall, but there was expert testimony showing the worker’s BAC
after the fall was at an intoxicating level
• The Court of Appeals found that the lack of witness testimony or
explanation of how Kamarad’s fall occurred did not entitle him to a
presumption that he was acting with due care and diligence
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Mental-Mental
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LB 21
(2013)
• Passed and approved by the Governor on March 7, 2013
• Eliminated the sunset provision on mental-mental claims for first
responders
• (those where the conditions causing the mental injury were
“extraordinary and unusual in comparison to the normal
conditions of the particular employment”
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LB 297
(2014)
• Would have added coroners to the individuals eligible to receive
benefits for mental injuries and mental illness unaccompanied by
physical injury under the Nebraska Workers’ Compensation Act
• Not sure what a coroner would have to see to rise to the
level of “extraordinary and unusual” in comparison to what
coroners normally see . . .
• Died
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Money Grab . . .
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LB 291
(2014)
• Sought to amend Neb. Rev. Stat. § 48-125 to provide a 50%
penalty on medical bills not paid “within thirty days after notice
has been given” or within 30 days of entry of a final order
• So if $20,000 hospital bill is not paid within 30 days, employee
would be entitled to $10,000
• Died
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On a Wing and a Prayer . . .
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LB 307
(2014)
• Would have overridden the doctrine of “beneficent purposes” to
eliminate the liberal construction of the Workers’ Compensation
Act in favor of employees
• Would allow for suspension of temporary disability benefits or
create a rebuttable presumption that such benefits should be
terminated in cases in which injured workers:
• Are incarcerated
• Refuse to submit to medical or surgical care recommended by
their own physician
• Refuse to accept light-duty work for which they have been
recommended by their treating physician
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LB 307 cont.
• Would provide greater flexibility and fairness for both employers
and employees in cases in which an increase or decrease in
compensation is warranted, but the filing of an application for
modification of award is delayed
• Died
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No, I’m not Kidding . . .
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LB 324
(2014)
• Would reinstate the defense of employee misrepresentation for
employers to avoid having to pay benefits from an injury or
condition relating to misrepresentations given by the employee
when applying for a position with the employer
• Would allow employees, prior to the time of sustaining an injury,
to “opt out” of having first injury reports to their workplace
injuries made available for public inspection
• Would base the interest rate applicable to awards of WC benefits
on appeal upon the same standard applicable to other money
judgments
• Died
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. . . because I’m a DOCTOR!
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LB 584
(2014)
• Would require the scope and duration of medical, surgical, and
hospital services to be provided in accordance with the Official
Disability Guidelines (ODG) as published by the Work Loss Data
Institute
• Would presume any medical, surgical, and hospital services
provided in accordance with the ODG to be reasonable
• Would remove responsibility of an insurer, risk-management pool,
or self-insured employer for charges for medical, surgical, or
hospital services not provided in accordance with the ODG unless
the services were provided in a medical emergency, pre-authorized
by the insurer, or approved by an independent medical examiner
selected by the employer and the employee to resolve disputes
regarding the reasonableness of such services
• Died
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May I have a “COLA” please?
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LB 302
(2014)
• Would provide annual adjustments for total disability benefits in
proportion equal to annual increases resulting from the
determination of the state’s average weekly wage
• The automatically escalating benefits proposed under LB 302
would result in increased costs for employers
• Died
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“The ‘shoulder bone’ is connected
to the ‘whole body’ bone . . .”
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LB 310
(2014)
• Would provide that loss of an arm does not include injuries to
the shoulder regardless of the location of residual impairment,
with injuries to the shoulder to be compensated pursuant to the
total and partial disability provisions of the Workers’
Compensation Act, rather than as a scheduled member injury
• Died
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QUESTIONS?
Dallas D. Jones
djones@baylorevnen.com
Confident and Intelligent Legal Solutions