Frequently Asked Questions about Nebraska Workers’ Compensation Cases
Choosing a Doctor for Nebraska Workers’ Compensation
1. How do I get medical care after I have been injured on the job? Unfortunately the answer to this question is rather complex. If you do not follow Nebraska’s Workers’ Compensation rules closely, you could end up paying for your medical treatment instead of your employer’s workers’ compensation insurance company. Here are some of the important rules:
a) If it is an emergency, you may see any doctor immediately. Once the emergency is over, the special workers’ compensation rules apply.
b) If your employer has told you about your right to choose a primary treating doctor, the following rules apply:
o You may choose any doctor who has treated you or a family member before you were injured. It is always a good idea to put your choice in writing and keep a copy for yourself.
o If you do not tell your employer who that doctor is, then your employer gets to pick your primary treating doctor.
o If you know of no doctor who treated either you or a family member before you were injured, then your employer gets to choose your primary treating doctor.
c) If your employer does not tell you about your right to choose a primary treating doctor, then you may choose any doctor.
d) If your employer has a managed care plan, you still may choose any doctor who has treated you or a family member before you were injured, but this doctor must agree to the rules of the managed care plan.
2. When may I change doctors? Once a primary treating doctor has been chosen, you may not change doctors unless you and your employer’s insurance company agree or the Nebraska Workers’ Compensation Court orders the change.
3. What happens if I need to be referred to a specialist? The primary treating doctor is responsible for making referrals to specialists. If you fail to get a referral from your primary treating doctor to a specialist, there is a good chance that the workers’ compensation insurance company will not be responsible for the specialist’s bill and you will have to pay it. The referral to a specialist is not a change of primary treating doctor.
4. Do I get to choose my own doctor if I need major surgery or have suffered dismemberment? Yes. In these cases you always get to choose the doctor.
5. Does my employer’s insurance company get to tell me which doctor to see if it denies my claim for workers’ compensation? No. If the insurance company denies your claim, then you may choose any doctor as your primary treating doctor.
6. Can my employer’s insurance company force me to see another doctor for a second opinion? Yes. The insurance company can require you to see another doctor for an examination. This doctor is not allowed to treat you unless you agree that you want this doctor to treat you. If you agree, then in some cases you may have agreed to switch doctors leaving you with a new treating doctor who was hand-picked by the insurance company. If you refuse to see the insurance company’s doctor and do not have a good reason for your refusal, then the insurance company may be allowed to cut off your benefits until you see its doctor.
7. May a nurse case manager attend my doctor’s appointments? If you do not want the case manager to be in the room when you see the doctor, you have the right to keep him or her out of the room. After the doctor has finished evaluating and treating you, the nurse case manager may request the opportunity to visit with your doctor. Your doctor will decide whether to honor this request. If the doctor agrees to this request, you may want to stay in the room to hear the conversation between them.
8. Does the insurance company have a right to see my medical records? Nebraska’s Workers’ Compensation laws give the insurance company the right to obtain all medical and hospital information that is relevant to a worker’s injury. Generally it is not a good idea to give the insurance company a blank waiver that gives it permission to seek all medical records regardless of whether they relate to your injury. If you decide to sign a medical waiver, it is best to sign only those waivers that are directed to the particular doctors and hospitals who have treated you for your work injury.
9. What can I do if the insurance company refuses to pay for medical treatment that my doctor believes is necessary? You have two choices.
a) You can submit the dispute to the Nebraska Workers’ Compensation Court for informal dispute resolution.
b) You may file a petition with the Nebraska Workers’ Compensation Court. If the only dispute you have with the insurance company is over your medical care, Nebraska law requires that you undergo an independent medical evaluation before you can file the petition. (If you have other issues with the insurance company, this step is not required.) Regardless, undergoing an independent medical exam can be a good idea. If the IME doctor sides with you, the insurance company may give up and authorize the treatment.
10. Does the insurance company have to pay mileage reimbursement for visits to doctors?
Yes. The mileage rate as of July 1, 2011 is 55.5 cents per mile.
Weekly Nebraska Workers’ Compensation Benefits
1. What benefits are available to replace lost wages? Three types of benefits are available to replace lost wages.
a) Temporary total disability benefits. During the period that a worker is unable to return to his or her job, the worker receives temporary total disability benefits. The benefits are based on two-thirds of the amount of the worker’s average weekly wage. The weekly amount is subject to a statutory minimum and a statutory maximum. The insurance company for the employer is not required to pay these benefits during the first week that the employee is off work unless the injury is permanent or keeps the worker off work for more than six weeks. Temporary total disability benefits are also paid when you are in a court-approved vocational rehabilitation program.
b) Temporary partial disability benefits. If a worker is able to go back to work part-time but has not yet reached maximum medical improvement, then the worker receives temporary partial disability benefits. In addition to the part-time wage earned, the worker receives benefits of two-thirds of the difference between the average weekly wage on the date of the accident and the worker’s part-time earnings.
c) Permanent partial disability benefits. Once a worker reaches maximum medical improvement, the worker receives permanent partial disability benefits. If the injury is to the worker’s body as a whole, these benefits are based on the worker’s loss of earning power. If the injury is to a specific member such as an arm, leg, hand, or foot, then the benefits are based on a schedule that is set out in Nebraska’s statutes.
2. How do you calculate the amount of temporary total disability benefits? Temporary total disability benefits are based on two-thirds of the worker’s average weekly wage. The average is based on the wage history over the 26 weeks before the date of the accident. Periods when wages are reduced because of unpaid vacation or sick days are generally excluded. Overtime wages are included, but generally at the straight time rate. The amount of the weekly benefits is subject to a statutory minimum of $49.00 per week and a statutory maximum that is determined by the year in which the worker was injured. Here is the schedule:
3. What is the difference between a scheduled member injury and an injury to the body as a whole? This distinction is important because the method for calculating permanent partial disability benefits is different.
Scheduled Member Injuries. The Nebraska statutes contain a schedule of compensation that applies to injuries to specific body parts. Examples of some of these scheduled injuries and the number of weeks of compensation that a worker may receive if the worker suffers a total loss of function of that member include:
Hand 175 weeks
Arm 225 weeks
Foot 150 weeks
Leg 215 weeks
Eye 125 weeks
Ear 25 weeks
Hearing in one ear 50 weeks
Fingers and toes are also treated as scheduled injuries. Compensation is based on the impairment rating that is determined by the doctor. For example if the doctor determines that a worker has suffered a 10% impairment of the worker’s leg, then that worker will receive 21.5 weeks of benefits (215 weeks x 10%). In most cases the worker will receive benefits in the same amount that he or she received temporary total disability benefits. These benefits are always in addition to the benefits that are paid for periods of total disability.
Injuries to the Body as a Whole. Injuries to parts of the body that are not listed in the statutory schedule are considered to be injuries to the body as a whole. Injuries to the back, neck, and brain are examples of injuries to the body as a whole. Compensation for injuries to the body as a whole are based on the loss of earning power that the worker has suffered as a result of the injury. A vocational expert is often used to determine the loss of earning power. Compensation is determined by starting with two-thirds of the worker’s average weekly wage and multiplying that number by the percentage loss of earning power. (This amount is subject to the statutory ceiling on the amount of benefits that a worker may receive.) The worker receives permanent partial benefits for a total of 300 weeks minus the number of weeks that the worker has received total disability benefits. Here is an example. Assume that a worker who injured his back in 2002 had an average weekly wage of $750. The worker is unable to return to work for a period of 40 weeks. When the worker is finally able to return to work, a vocational expert determines that the worker has suffered a 15% loss of earning power. The worker will receive temporary total disability benefits of $500 (2/3 of $750) for a period of 40 weeks. For the next 260 weeks the worker will receive permanent partial disability benefits of $75 per week ($500 x 15%).
4. Is there any limit on the number of weeks that a person may receive total disability benefits in Nebraska? No. Regardless of whether your injury is a scheduled member injury or an injury to your body as a whole, there is no limit on the number of weeks of benefits that you may receive.
Vocational Rehabilitation for Nebraska Workers’ Compensation
1. What if I cannot go back to my previous job? The Nebraska Workers’ Compensation laws provide for vocational rehabilitation of injured workers. The injured worker is entitled to those vocational services that are reasonably necessary to restore the worker to suitable employment. In some cases these services may include job placement or retraining. The services are provided through the assistance of a vocational counselor who is jointly selected with the insurance company or who is assigned by the Nebraska Workers’ Compensation Court.
a) Your vocational counselor must first attempt to return to you to your previous job with the same employer.
b) The second option is to return you to a modification of your previous job with the same employer.
c) The third option is to find you a new job with the same employer.
d) The fourth option is to find you a new job with a different employer.
e) The final option is to set up a period of formal retraining, which is designed to find you a job in another career field.
The vocational counselor must start at the top of the list and work his or her way down the list. Retraining is available only if the first four options are inappropriate for you.
2. How do I live while I am undergoing vocational rehabilitation? You will receive temporary total disability benefits while you are in a vocational rehabilitation program, regardless of whether it consists of assistance in finding a job, on-the-job training, or attending school. Note, however, if you have suffered an injury to your body as a whole, then the number of weeks of permanent partial disability benefits that you receive will be reduced by the number of weeks of temporary total disability benefits you receive while undergoing vocational rehabilitation.
Do I Need a Lawyer?
If you have suffered a scheduled member disability and are willing to take on the task of dealing with the insurance company, you may well come out ahead by doing it yourself.
If your case involves an injury to the body as a whole or if you want vocational rehabilitation, the issues are more complex, and you often will end up with a better overall result with help from a lawyer.