IT’S CALLED WORKERS’
COMPENSATION, NOT
EMPLOYERS’ COMPENSATION
Bryan S. Hatch
Stinson Leonard Street LLP
1299 Farnam Street, Suite 1500
Omaha, Nebraska 68102
(402) 930-1709
[email protected]
www.stinsonleondard.com
© 2014, Stinson :Leonard Street LLP
Employees
1 PTE = WCI
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• Nebraska law requires all employers with
one or more employees to carry workers’
compensation insurance
• Failure to carry this required insurance could
result in:
▫ $1,000.00 per day fine
▫ Imprisonment for up to one year
▫ Injunction preventing business from operating
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Independent Contractor
Agreements
• Individual signs independent contractor
agreement acknowledging status and
obligation to provide their own workers’
compensation coverage
▫ § 48-116 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
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Employee vs. Independent Contractor
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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
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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
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Course and Scope of Employment
• Other “rules” to consider:
▫ Sidewalk rule
▫ Parking lot rule
▫ Commercial traveler rule
▫ Coca-Cola rule
▫ Employee transportation rule
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Notice of Injury
• Employee obligated to provide notice as
soon as possible
▫ Written
▫ Oral
• Doesn’t always happen
▫ Constructive
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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
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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
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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
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Possible Defense: HORSEPLAY
• Generally covered under workers’
compensation unless you can show
substantial deviation from employment
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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
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Possible Defense: INTOXICATION
• Intoxicated
• Employer not aware
• Expert testifies to effect of alcohol as
contribution to injury
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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
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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
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Violation of Safety Rule
?
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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
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Benefit Payments
• Failure to pay due and owing benefits within
30 days results in a 50% statutory penalty per
§ 48-125
• Mailbox rule
• A penalty will be assessed for failure to pay
due and owing amounts unless there is a
reasonable controversy
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Reasonable Controversy
• Legal = law is unsettled
• Medical = physicians offer conflicting reports
on causation
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Vocational Rehabilitation
• Job placement assistance
• Suitable gainful employment
• Retraining
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Return to Work
• Reduced indemnity payments
▫ TTD vs. TPD
▫ Body as a whole vs. scheduled member injuries
• Reduced vocational rehabilitation costs
▫ Priorities § 48-162.01
▫ Loss of earnings
• Prevents migrating injuries
▫ Psychological and psycho-social injuries
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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
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(s)
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