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:
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:
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 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:
Nebraska law provides that once an employee sustains an accident, he or she is required to provide notice "as soon as practicable" to the employer of the accident occurrence and injuries. What does that mean? In short, the requirement is that the employee tell the employer about his or her injury as soon as is realistic or possible. Difficult is that there are no hard and fast rules in Nebraska regarding how and when notice must be provided. Is providing notice the day after the accident considered sufficient? Yes, likely. Is waiting a week to report the accident okay? Probably. Will telling the employer 2 or 3 or more months after the accident be considered sufficient notice? Here, it will depend on the facts and the credibility of the injured worker's justification for the delay.
Several attorneys in our office are licensed in multiple states. The issue of where to file a law suit and which state has better benefits for the injured worker comes up commonly, especially in cases where the injured worker travels for work. There are certain situations in which workers' compensation benefits will be more beneficial for an injured worker if they are able to pursue the claim in Iowa, rather than Nebraska. Employees injured while working in Iowa are entitled to Iowa workers' compensation benefits. If an employee is injured outside of Iowa, there may still be Iowa jurisdiction if (1) the employer has a place of business in Iowa and the employee regularly works at or from that place of business; (2) the employer has a place of business in Iowa and the employee lives in Iowa; (3) the employee is working under a contract of hire made in Iowa and employee regularly works in Iowa; (4) the employee is working under a contract of hire made in Iowa and sustains an injury for which no remedy is available under the workers' compensation laws of another state; (5) the employee is working under a contract of hire made in Iowa for employment outside of the United State; and/or (6) the employer has a place of business in Iowa and the employee is working under a contract of hire that provides that workers' compensation claims will be governed by Iowa law. In order to assess the best recovery available for an work injury, contact our office and discuss with one of our dually-licensed attorneys.
When a workers' compensation injury occurs, it is important to understand the rights and rules in Nebraska regarding the initial selection of the treating physician. When an employee suffers an injury, he or she has the right to the initial treating doctor. The rules provide that the chosen physician must have previously treated the employee or must have provided treatment to an immediate family member. The injured worker must provide the name of the family physician chosen as the primary treating physician as soon as possible and before obtaining any medical treatment, unless it is emergency medical treatment. If the employee does not provide a name of a physician, the employer gets to choose the primary treating physician. Additionally, if the physician the employee chooses requires an authorization to confirm your prior treatment and the injured worker does not provide the authorization, the employer/workers' compensation carrier may choose the primary treating physician. The primary treating physician may not be changed once chosen by the injured worker, unless the employer/workers' compensation carrier agrees to the change or the Nebraska Workers' Compensation Court orders the change. Click here to view an information sheet published by the Nebraska Workers' Compensation Court regarding choice of physician.
If an injured worker, employer, or insurer is looking to determine which insurance carrier provided coverage during a certain time period, this information may be accessed on the Nebraska Workers' Compensation Court's website using the "Coverage Lookup" tab. The party seeking the information will need the Employer Name and/or Federal Employer Identification Number and the coverage/injury/illness date.
Neb. Rev. Stat. § 48-177 provides that a cause of action filed with the Nebraska Workers' Compensation Court may be dismissed without prejudice to a future action by the plaintiff (typically, the injured worker) at any time before the final submission of the case to the Nebraska Workers' Compensation Court. Last week, the Nebraska Supreme Court decided Wilmer Interiano-Lopez v. Tyson Fresh Meats, Inc., which is a procedurally significant case in the Nebraska workers' compensation arena. Prior to the ruling in this case, the law was unsettled regarding whether a workers' compensation defendant could file a counterclaim against an injured worker. In some cases, workers' compensation defendants were filing counterclaims in an effort to preserve an ability to keep the injured workers' cause of action on file with the court and force the case to trial, even if the plaintiff wished to dismiss the workers' compensation claim without prejudice. The Supreme Court in Wilmer Interiano-Lopez determined that counterclaims by defendants are not permissible because allowing such counter claims "would have the effect of nullifying a plaintiff's statutory right to dismiss the cause without prejudice under § 48-177."
Attorney Travis Spier was recently selected to the Thomson Reuters Super Lawyers Rising Stars List for his work in Workers' Compensation, Great Plains Region. No more than 2.5 percent of attorneys in the state of Nebraska are selected for this honor. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. A description of the selection methodology can be found here. Super Lawyers' Rising Stars list recognizes the top up-and-coming attorneys in the state - those who are 40 years old or younger, or who have been practicing law for 10 years or less.