IT S CALLED WORKERS COMPENSATION, NOT EMPLOYERS COMPENSATION

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1 IT S CALLED WORKERS COMPENSATION, NOT EMPLOYERS COMPENSATION Bryan S. Hatch Stinson Leonard Street LLP 1299 Farnam Street, Suite 1500 Omaha, Nebraska (402) Bryan.hatch@stinsonleonard.com , Stinson :Leonard Street LLP

2 Employees 1 PTE = WCI 2

3 Nebraska law requires all employers with one or more employees to carry workers compensation insurance Failure to carry this required insurance could result in: $1, per day fine Imprisonment for up to one year Injunction preventing business from operating 3

4 Independent Contractor Agreements Individual signs independent contractor agreement acknowledging status and obligation to provide their own workers compensation coverage places burden on you to ensure that independent contractors carry workers compensation insurance If no insurance, you become statutory employer and are liable for injury 4

5 Employee vs. Independent Contractor Control Distinct occupation or business Work done at direction of another Skill required Who supplies the tools and instrumentalities Duration/time period one is employed Paid by time or job Work regular part of business of employer Intent Whether employer is in business 5

6 Course and Scope of Employment Going and coming rule: If employee is injured either going to work or coming home from work, the injury is generally not covered under workers compensation 6

7 Course and Scope of Employment Other rules to consider: Sidewalk rule Parking lot rule Commercial traveler rule Coca-Cola rule Employee transportation rule 7

8 Notice of Injury Employee obligated to provide notice as soon as possible Written Oral Doesn t always happen Constructive 8

9 First Report of Injury Employer must file First Report Reportable injury is injury or illness that results in fatality lost work day no lost work day but results in transfer, termination, requires medical treatment, loss of consciousness, and diagnosed occupational illness Medical treatment does not include one-time treatment and subsequent observation of minor scratches, cuts, burns, and splinters 9

10 Choice of Physician: Rule 50 Following notice of injury, complete Choice Physician form Designated physician must have treated employee or immediate family member Immediate family member = spouse, child, parent, step-child, step-parent Allowed to verify prior treatment with physician If employee refuses to allow verification, right to choose physician reverts to employer If employee does not choose physician, right reverts to employer 10

11 Promptly File and Complete Required Reports First Report of Injury: Failure to file affects statute of limitations Choice Physician Form: Failure to complete affects authorized physician defense 11

12 Possible Defense: HORSEPLAY Generally covered under workers compensation unless you can show substantial deviation from employment 12

13 Possible Defense: INTENTIONAL CONDUCT Between employees: Examine motivation behind the altercation (personal reasons vs. employment) Against employees by third parties: Examine if work occasioned the location for the assault/act, or provided the motivation behind the act Bill collecting Sexual assault Homicide 13

14 Possible Defense: INTOXICATION Intoxicated Employer not aware Expert testifies to effect of alcohol as contribution to injury 14

15 Possible Defense: EXCEEDING WORK RESTRICTIONS Cannot deny benefits solely because employee exceeded their work or medical restrictions. To prevail, will have to show: Employee understood his/her restrictions Employee told by physician not to exceed restrictions Employee knew and understood that he/she would be injured if restrictions were exceeded 15

16 Possible Defense: WILLFUL NEGLIGENCE Although this is a statutory defense, there is reluctance to allow defense to prevail unless: Employee engaged in conduct evidencing reckless disregard for the consequences Employee knew that injury would result Examples: Suicide Stupidity 16

17 Violation of Safety Rule? 17

18 Possible Defense: STATUTE OF LIMITATIONS Two years from date of injury or date of last payment Exceptions: Delay or failure to file First Report of Injury Payment of indemnity, medical, or other expense which benefits employee Date of payment, not service rendered Substantial and material change in condition Latent injury 18

19 Benefit Payments Failure to pay due and owing benefits within 30 days results in a 50% statutory penalty per Mailbox rule A penalty will be assessed for failure to pay due and owing amounts unless there is a reasonable controversy 19

20 Reasonable Controversy Legal = law is unsettled Medical = physicians offer conflicting reports on causation 20

21 Vocational Rehabilitation Job placement assistance Suitable gainful employment Retraining 21

22 Return to Work Reduced indemnity payments TTD vs. TPD Body as a whole vs. scheduled member injuries Reduced vocational rehabilitation costs Priorities Loss of earnings Prevents migrating injuries Psychological and psycho-social injuries 22

23 Implement Quality Control Measures in All Record Keeping First Reports Accurately Recorded Use employee s own language as much as possible Correct wage/marital status/other factual information Internal Investigative Reports Have employee acknowledge incident is correctly recorded Reconciliation Left vs. Right Single vs. Multiple Problems Notice defense Multiple scheduled member injuries from a single accident Court defers to employee s version of events 23

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