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Workers' Compensation Archives

I am on Medicaid, Social Security, Medicare or other governmental assistance and I've been injured as a result of another's negligence. Are there any special considerations I should be worried about in settling my case?

Yes! Key steps are required to ensure your settlement will not count as income to affect your entitlement to governmental benefits. Steps such as a special needs trust, negotiations with governmental entities, repayment of conditional payments and specific language in settlement documents is often essential to ensure your governmental benefits are not interrupted.

What happens if English is Not My First Language? Who Provides an Interpreter for my Legal Hearings?

In Nebraska, Rule 5 provides that "The court shall appoint an interpreter in any legal proceeding in order to assist a person who cannot readily understand or communicate the English or spoken language." Once a claimant formally requests an interpreter at a hearing, the employer/insurance company must pay the costs for the same. There are different levels of interpreters who are available to provide services at a hearing, including (from highest to lowest): Certified Court Interpreters, Provisionally Certified Court Interpreters, and Registered Court Interpreters. There are also several levels of Sign Language Court Interpreters. The Supreme Court rules indicate that "diligent efforts must be made to obtain the highest level of certification before allowing an interpreter with a lower level of certification to interpret." The Nebraska Supreme Court keeps a Court Interpreter Directory listing the language, certification level, area, and contact information of interpreters. The languages include Vietnamese, Somali, Spanish, Cantonese Mandarin, Bosnian/Serb/Croatian, ASL, French, Mandarin Chinese, Russian, Portuguese, and Arabic. If an alternative language is needed, the Interpreter Coordinators may be able to help. If you require a Court Reporter for your medical appointments, often the employer/insurance company will provide one at their cost as well. At Atwood, Holsten, Brown, Deaver & Spier Law, we know that you likely only get "one day" in Court and that it is important that you be able to understand the legal proceedings and communicate with the Judge and witnesses. We'll do all we can to ensure that you are afforded an interpreter at your medical appointments, deposition, and court hearings.

What Happens if an Employer Fails to Carry Workers' Compensation Coverage for its Employees?

The Nebraska Workers' Compensation Act allows for penalties, or even possible imprisonment, for employers who fail to provide workers' compensation coverage for their employees. If the employer is found to have failed to purchase workers' compensation insurance, is not self-insured, and is not a member of the risk management pool, any or all of the following penalties may be imposed:

Is Everyone Covered by the Nebraska Worker' Compensation Act?

Although there are limited exceptions, the Nebraska Workers' Compensation Act applies every employer in the state, including governmental agencies, employers in private industry, part time employers, employers of minors and charitable organizations. Therefore, nearly every employee in the state is covered by workers' compensation law. The few exceptions (those who are not covered by workers' compensation) are:

I received short term disability through my employer while I was out due to injury. The short term disability carrier is now they are asking for their money back out of my settlement. Can they claim that?

Maybe. This is often referred to as subrogation. It will depend on the language of the plan and the intent of the payments. Regardless, there are almost always steps that can be taken to reduce and often convince your short or long term disability carrier to reduce or waive their subrogation interest. We have saved our clients hundreds of thousands of dollars that would otherwise be taken out of their settlement by negotiating down subrogation interests.

Entry Upon an Employer's Property in Workers' Compensation Cases: What Purposes Does it Serve and Who May Attend?

An injured worker's attorney may request entry onto the employer's worksite to gather evidence pertinent to the workers' compensation claim. Access to an employer's property is permitted pursuant to Neb. Ct. R. Disc. § 6-334(a)(2), which allows for:

What is a First Report and why is it important?

In Nebraska, a "First Report of Alleged Occupational Injury or Illness" form ("First Report" for short) is used for many things. If you are hurt at work and require medical treatment other than first aid, are restricted from your normal work duties, and/or miss work, you employer will likely fill out a First Report for you or have you fill out a First Report. The First Report provides information about the Employer, Insurance Carrier, Employee, and the Accident/Injury. Once completed, the First Report is filed with the Nebraska Workers' Compensation Court. Per the Court rules, the First Report shall be filed with the Court within 10 days after the employer or the insurance company have been given notice of or have knowledge of the injury. If your employer or the insurance company fail to file a First Report, the statute of limitations (timeline to file a law suit) does not begin to run until the First Report has been filed. Thus, the timeline to file your law suit may be extended if the First Report was not filed. While it is rare, if your employer fails to file a First Report despite your reporting, you can contact the Court to obtain a First Report to file on your own. If you would like to request a copy of any First Reports filed relating to you, you may do so via the Nebraska Workers' Compensation Court's website. If you have questions about whether a First Report was filed or dispute the details contained in the First Report, the lawyers at Atwood, Holsten, Brown, Deaver & Spier can talk you through the nuances and impact of the same.

Does Violation of a Safety Rule Preclude Entitlement to Workers' Compensation Benefits?

Possibly. In Nebraska workers' compensation claims, benefits may be denied to an injured worker if they were willfully negligent at the time of the injury. Neb. Rev. Stats. 48-102, 48-107, and 48-151(7). Willful negligence consists of (a) a deliberate act, (b) such conduct as evidences reckless indifference to safety, or (c) intoxication at the time of the injury, such intoxication being without the consent, knowledge, or acquiescence of the employer or the employer's agent. Neb. Rev. Stat. 48-151(7). Generally, the deliberate defiance of a reasonable safety rule in place to prevent serious bodily injury to an employee will constitute willful misconduct in the absence of certain excuses. The factors that the Court looks at in determining whether a violation of an employer's safety rule should disqualify a worker from receiving workers' compensation benefits include:

The Use of Video Surveillance in Workers' Compensation Cases

Employers and workers' compensation insurance companies sometimes employ private investigators to obtain video surveillance of an injured employee. The purpose of video surveillance is often to:

Social Media and Workers' Compensation

Social media posts and messages, even those considered "private," may be discoverable in a Nebraska workers' compensation case. The Nebraska Rules of Discovery provide that any party to a lawsuit may obtain information regarding any matter, not legally privileged, which is relevant or "reasonably calculated to lead to the discovery of admissible evidence." Neb. Ct. R. Disc. § 6-326(b)(1). Since 2009, when information obtained from a social media website was first offered as evidence in the Nebraska Workers' Compensation Court, employers and workers' compensation insurance companies have increasingly sought to obtain access to injured workers' social media accounts. Social media posts contradicting the claim (the nature and extent of disability alleged, causation of the alleged injury, or the worker's credibility generally) have, in some cases, prompted the Court to reduce or deny workers' compensation benefits. For example:

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  • " The lawyers and support staff at Atwood Law Firm showed me sincere interest and caring on a very personal level, and I knew at all times my interests were front and center in all aspects of my workers' compensation case. This office is staffed by a great group of people. You can relax and be assured that your welfare comes first and foremost in their decisions and actions with respect to your legal case. You are kept aware of the process and progress in your case at all times, and your input is welcomed. I highly recommend the Atwood Law Firm to anyone needing legal assistance.” - WN
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