Tag Archives: benefits

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State Laws Determine Worker’s Rights: Work Comp Benefits, Process Vary by State

Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.

Many workers are hired in one state but are required to attend orientation or participate in a hiring process in another state because their potential employer is principally located and doing business there. Once they are hired and accept the job, they are then required to work in another state for various reasons. In these situations, many workers do not realize that a different state’s laws could apply to their workers’ compensation claim if they are injured in a state that is

  1. different from where they were hired,
  2. different than where they accepted the job,
  3. different from where their employer is principally located or performing work, or
  4. even different than where they currently live. 

If you have been injured in another state, you may be eligible to have your workers’ compensation benefits determined by another state’s laws. This is important, as the benefits you could be entitled to are different in every state. In certain respects, the differences are significant in terms of the amount of weekly benefits, permanent benefits, or type and duration of medical care you may be able to receive.

The right to choose your family physician to treat you for your injury or the amount and duration of the disability benefits you may be entitled to are significantly different in every state. Let’s consider a few pairs of cities:

  • Omaha, Nebraska & Council Bluffs, Iowa
  • Sioux City, Nebraska & Sioux City, Iowa
  • Nebraska City, Nebrsaka & Harlan, Iowa

These cities in different in Iowa and Nebraska border each other, and a great number of residents from one are employed and work in the other. If you are injured in one state but live in another, and depending on where you were hired or where you were when you accepted the employment, you may have a Nebraska or Iowa workers’ compensation claim, or even both. 

Nebraska

If your employment or your accident has any ties to the state of Nebraska, your employer is required to file a First Report of Injury with the Nebraska Workers’ Compensation Court. When this occurs, it is common for the Nebraska Workers’ Compensation Court to actually mail you a copy of your own First Report of Injury that was filed with the court by your employer. Just because a First Report of Injury was filed in Nebraska and just because the Nebraska Workers’ Compensation Court sends you a copy does not mean you are limited to Nebraska for the benefits that you may be entitled to. 

Iowa

It is also normal for an insurance carrier of the employer to mail you a letter that says, “Your employment agreement, whether in writing or made in person, required your accident to fall under Iowa law,” or some other state’s law. Generally, no one has the right to decide for you which state your case can be determined in. It is a question of each state’s laws that determine where your claim can be processed.

Nebraska and Iowa

As a matter of general practice, if your accident occurred in that state, your claim and benefits can be determined based on that state’s laws. Other things like where your employer is principally located or where your employer regularly performs work can determine if you have a claim in each state. Further, your contract of hire or where you accepted the employment can also play a part, as well as where you were residing at the time of your accident in relation to where your employer was performing work, can also determine which state you may have a claim in. 

These things, as well as what type of benefits each state allow, could make it possible for you to file in both states.

Time Periods to File in Each State

Each state has a certain time period in which to file a claim or action in the compensation court. 

  • In Nebraska, you have two years from the date of accident OR two years from the date of any payment (weekly disability check, medical bill, mileage, prescription) in which to file an action in the compensation court. 
  • In Iowa, a person has two years from the date of accident OR three years from the date of payment of a weekly disability benefit check in which to file an action in the compensation court.  

Beware, however, that payment under one state’s laws may not save your claim in another state. For example, a payment under Iowa law will count toward a payment in Nebraska. However, a payment under Nebraska law will not count toward a payment under Iowa law.

Award, Order or Settlement Agreement for Benefits

It is important to note as well that an award, order or settlement can affect your right to file a claim in another state. 

For example, if one obtains a Court Award, Order or Settlement in Nebraska, this would prevent you from obtaining any benefits in Iowa, if you had the option of pursuing benefits in both states. 

On the other hand, if the same person obtained a Court Award, Order or Settlement in Iowa, a person could still pursue additional benefits in Nebraska that are different than what was provided in Iowa.

In both states, the insurance carrier would be entitled to a credit for what they paid in the other state, but you would still have the opportunity to pursue different and additional benefits in the other states, potentially.    

Summary

The differences in law issues are often very complex. Whatever your situation is, if you think there might be any question as to which state’s laws apply to your case, you should speak to an experienced attorney who can advise you about the laws in each applicable state.

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What Does The Supreme Court’s Striking Down Of The Defense Of Marriage Act Mean For Your Social Security Disability Benefits?

The United States Supreme Court struck down the Defense of Marriage Act

Today’s post comes from guest author Barbara Tilker from Pasternack Tilker Ziegler Walsh Stanton & Romano.

On June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) violated the Fifth Amendment and is therefore unconstitutional. While DOMA was in effect, the federal government did not recognize same-sex marriages that were performed in states where they are legal, such as New York.  This meant that the Social Security Administration was unable to pay certain benefits to individuals who would have otherwise been entitled to them if they were married to someone of the opposite sex. As this part of the law has been struck down, validly married same-sex couples should be treated identically to opposite-sex couples by the Social Security Administration.

There are several Social Security benefits that married individuals are entitled to that unmarried individuals are not.  The two largest programs are survivor benefits and disabled widow(er)s benefits. A surviving spouse can now be entitled to benefits on a deceased spouse’s earnings record once they attain age 60 or are disabled and age 50. These benefits, once only available to opposite-sex couples, should now be extended to same-sex couples as well. Stepchildren may now also be entitled to benefits on a worker’s earnings record, if the worker is either deceased or receiving Social Security retirement or disability benefits.

The Social Security Administration relies on state law to determine if a person was legally married. Social Security looks at the law of the state where a person was living at the time of their death to determine if their marriage was valid. It’s possible that a same-sex couple could be married in New York (or another state where same-sex marriage is legal) and then move to a state that does not recognize same-sex marriage.  According to Social Security’s current rules, the Administration would look to the rules of the state where the person lived at the time of their death to determine if the marriage was valid.

At first glance, this seems to mean that validly married same-sex couples could be denied benefits they would have been entitled to if they didn’t move. However, Social Security also recognizes a “deemed marriage” provision. In simple terms, if both partners believed themselves to be married, and acted like a married couple, and the only reason they are not validly married is “a legal impediment not known to the applicant” at the time of the marriage ceremony, Social Security will consider the marriage to be valid for benefit purposes.

We don’t know yet how Social Security will enact these provisions or what the end result will be. However, it appears clear to us that many people who were being denied benefits because of who they love will now be entitled to them.

Employee Termination Because of Facebook Comment Does Not End Workers’ Compensation Benefits

Today’s post comes from guest author from Jon Gelman, LLC – Attorney at Law.

It is unclear whether, under Washington laws, Ms. Miller would be allowed continued time loss benefits. However, it is not uncommon for us to encounter this general scenario in our workers’ compensation practice, as well. When an injured worker returns to work, they can be fired “for cause” and this can result in the worker losing their ability to receive time loss compensation or to apply for unemployment compensation. Every case is different; the specific facts must be reviewed to determine whether legal action can be taken to restore time loss compensation payments after a firing.

An employee who was terminated because of comments made about her employer on Facebook has been allowed continuation of workers’ compensation benefits.

“Lawful termination, like fraud, cuts through everything; but the reasons for
firing here are murky. And whether it’s a legal termination or not isn’t a
question for this forum as workers’ compensation courts are not in the business
of determining whether a firing was appropriate. What is important here is
that termination from employment in and of itself does not end entitlement to
supplemental earnings benefits as set forth in the [Palmer v. Schooner ] case.
In the case at hand, [Ms. Miller] returned to work in a light duty status. She
worked for a short period of time until her termination on October 14, 2010.
She was terminated for violating a hospital policy by posting a comment on Facebook. 
Pursuant to Ms. Salutillo’s comments in the [CSPH] employee memorandum,
[Ms. Miller’s] employment was terminated based on failure to uphold standards of
behavior. After her termination, [Ms. Miller’s] treating physician took her
off work for a short period of time, but ultimately opined she could work light
duty.”

BRENDA MILLER v. CHRISTUS ST. PATRICK HOSPITAL

— So.3d —-, 2012 WL 5238000 (La.App. 3 Cir.), 2012-370 (La.App. 3 Cir. 10/24/12)

Read More about Social Media and Workers’ Compensation

Jul 03, 2012
An injured worker was denied benefits when an Arkansas Court admitted into evidence Facebook pictures that were posted on line showing him drinking and partying. The worker had alleged that as a result of a hernia, 
Apr 13, 2012
Facebook’s new announcement today creates even a greater problem for workers’ compensation claimants. Providing even greater historical information about an unsophisticated Facebook user puts even more information, 
May 07, 2012
The announcement of Facebook to allow for the public listing of organ donors of it social media site, albiet with good intentions, raises concerns about the privacy of workers’ compensation claims as the organs could become 
Sep 15, 2010
Social networking sites, such as Facebook, have now become informational sources that workers’ compensation lawyers are now utilizing for evidentiary purposes. The question that remains unanswered is how information 

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Slow Recovery Affects Workers’ Compensation Benefits and Costs

A Press Release by the National Academy of Social Insurance

 

WASHINGTON, DC – Workers’ compensation benefits declined to $57.5 billion in 2010 according to a report released today by the National Academy of Social Insurance (NASI). The drop in workers’ compensation benefits was largely due to a 2.1 percent drop in medical benefits for injured workers. Employers’ costs for workers’ compensation also fell by 2.7 percent in 2010. As a share of covered wages, employers’ costs in 2010 were the lowest in the last three decades.

 

“As a share of covered wages, employers’ costs in 2010 were the lowest in the last three decades.”

 

“Employers’ costs as a percent of payroll declined in 43 jurisdictions,” said John F. Burton, Jr., chair of the study panel that oversees the report. “This decline is probably due to the slow pace of the recovery, with many jurisdictions still experiencing relatively high unemployment rates.”

 

Workers’ Compensation Benefits, Coverage, and Costs, 2010
Total

2010

Change   Since 2009 (%)

Covered workers (in thousands)

124,454

-0.3%

Covered wages (in billions)

$5,820

2.6%

Benefits paid (in billions)

$57.5

-0.7%

Medical benefits

$28.1

-2.1%

Cash benefits

$29.5

0.7%

Employer costs (in billions)

$71.3

-2.7%

Per $100 of Covered Wages

2010

Change   Since 2009 ($)

Benefits paid

$0.99

-$0.03

Medical benefits

$0.48

-$0.03

Cash benefits

$0.51

-$0.01

Employers’ costs

$1.23

-$0.06

Source: National Academy of Social Insurance, 2012.

 

The new report, Workers’ Compensation: Benefits, Coverage and Costs, 2010, is the fifteenth in the series that provides the only comprehensive data on workers’ compensation benefits for the nation, the states, the District of Columbia, and federal programs. 

 

“This report represents the first time the Academy has released employers’ costs by state.”

This report represents the first time the Academy has released employers’ costs by state. For a table showing employers’ costs for all fifty states and the District of Columbia, refer to Table 12 (page 34).

Most states reported a decrease in the number of workers covered but an increase in covered wages between 2009 and 2010. During the same period, the total amount of benefits paid to injured workers declined in 26 jurisdictions and increased in 25. As a share of payroll, benefits paid to injured workers fell by three cents to $0.99 per $100 of payroll in the nation.

The share of medical benefits for workers’ compensation has increased substantially over the last 40 years. During the 1970s medical benefits nationally accounted for 30 percent of total benefits, whereas in 2010 the share of benefits paid for medical care was almost 50 percent. Experts attribute this trend to the rising cost of health care.