Even though most people are working from home right now due to COVID-19 – and others have been laid off or furloughed due to the financial impact of the pandemic – most of us will likely return to the workplace eventually. And freak accidents can happen in any profession – especially the trades – that permanently damage the whole body.
A tumble at a construction site can leave an employee with life-threatening injuries. A roadside engineer could become paralyzed after being hit by a reckless driver speeding through a construction zone.
The construction, production, and transportation industries have some of the highest rates of injuries to the spine or head that require workers to need time off, according to the U.S. Bureau of Labor Statistics. Injuries to the back, including the spine and spinal cord, among the most common – and the most serious.
Most people injured at work return to their jobs. But some workers, especially those with whole body injuries, don’t fully recover. That means they cannot go back to their normal way of life and earn a viable income.
A serious injury impacting your whole body can change your life forever. But that doesn’t mean it needs to leave you without an income at all. The workers’ compensation team at Watson & Carroll, P.C., L.L.O. represents injured workers across Nebraska, from Omaha to Scottsbluff and everywhere in between. We have helped recover benefits for employees who sustained complex whole body injuries in the workplace, including compensation for medical and hospital bills, travel expenses, rehabilitation, and lost wages.
Watson & Carroll also represents clients in personal injury, medical malpractice, and Social Security Disability claims. Client reviews recommend Watson & Carroll for its knowledgeable, experienced, and compassionate legal team.
Call 402.991.2100 or fill out our contact form to get started.
Workers’ Comp and Whole Body Injuries
Nebraska’s workers’ compensation laws that are designed to offer benefits to employees who suffer injuries by accident or occupational disease while at work. Workers compensation is only awarded to the worker who did not act willfully negligent when he or she was injured.
It’s important to take all of the necessary steps to start a workers’ compensation claim right away after facing an injury. There are several different types of workers’ compensation benefits, including temporary partial or total disability, permanent partial or total disability, whole body injuries, and permanent injuries to a specific body part. In this article, we are going to focus on whole body injuries, which includes injuries to the head, neck, torso, back, multiple body parts, and mental health injuries such as post traumatic stress disorder.
State law allows you to receive permanent disability benefits for whole body injuries that affect your earning power. What does that mean? It’s complicated.
The first thing you need to do is establish you have lost your ability to earn the same amount of money you earned before suffering an injury at work. It is a tough task that our attorneys at Watson & Carroll P.C., L.L.O are prepared to help you with. A workers’ compensation attorney can evaluate your claim and help you get the maximum amount of money you’re owed based on the severity of the injury.
The Nebraska Supreme Court has weighed in on this issue. In 1980, the court considered a case of a 41-year-old janitorial worker, who was in charge of picking up animal scraps and cleaning the floors, and became permanently disabled from a back injury. The man suffered the injury while dumping a tub of udders into an auger while working at the plant in April 1977, court documents said. His medical history was complex in the years that followed.
The case established that permanent disability benefits for whole body injuries are awarded based on the reduction in earning power or employability rather than by loss of bodily function. This was a big deal for case law and set the tone for how cases would be decided in the future.
The case set the criteria to be considered when determining how to award disability benefits resulting from a loss of earning power:
- Eligibility to procure employment generally;
- Ability to hold a job;
- Capacity to perform the tasks of the work; and
- Ability to earn wages, according to Sidel v. Travelers Ins. Co. 205 Neb. 541 (1980).
If the injured employee obtains new employment and receives the same or a higher salary than he or she earned pre-injury, indicates that the worker likely has not lost earning power, judges ruled in that case. (This is not always true in every case and consultation with an experienced attorney is advised.) These four factors became known as “The Sidel Factors”.
The process to determine loss of earning power can be arduous. Insurance companies often deny the worker is entitled to a loss of earning power. If they admit a worker is entitled to one, they will try to get the lowest rating possible by choosing an evaluator who regularly makes low loss of earning power assessments or by sending you to an insurance doctor to skew the results. Even after choosing the evaluator and hiring their doctors, insurance companies may protest or delay the evaluation process. By the way, the insurance company does not have the ultimate say in who provides the loss of earning power assessment. This is a process you shouldn’t do on your own.
A study done by Martindale-Nolo Research found that it took nearly a year and a half on average for workers to resolve their workers’ compensation cases through voluntary settlements or through the court system. Just 19% of workers resolved their cases in less than six months, the group found. An attorney can make the difference in getting a timely and fair resolution to your case.
The Disability Rating Process
After you’ve done all you can to recover from your injury, your doctor may determine that you are not likely to improve even if further treatment is provided. This is referred to as “maximum medical improvement” or MMI. When you reach MMI, your doctor can evaluate the permanent nature of your injury. This determination may involve an evaluation of you by a physical therapist to determine what permanent restrictions you should observe as a result of the injury. If the permanent restrictions affect The Sidel Factors, your ability to earn income in the future will likely be affected resulting in a loss of earning power.
Once the permanent restrictions are identified by a physical therapist, the law still requires a doctor to adopt or affirm that the restrictions identified by the physical therapist are the ones that you should follow as a result of the accident. Some doctors may add restrictions or modify the restrictions depending on what the doctor believes to be necessary. The Nebraska Workers’ Compensation judge is not required to accept the restrictions or opinions that your doctor adopts. The judge can adopt the restrictions of any doctor that the Court believes to be more credible. This is one reason why insurance companies try to control which doctor treats you for an injury, and why insurance companies will often hire multiple doctors to provide multiple opinions in your case.
Once the permanent restrictions are determined and adopted, you are ready to have the loss of earning power determined. This process involves getting a court approved vocational rehabilitation counselor to assess how the permanent restrictions affect The Sidel Factors. How the court approved counselor views the restrictions as well as the factors makes a significant difference in the outcome of your case. At Watson and Carroll our team through experience and knowledge of the laws and judges of the court can navigate you through this process. There is not a “one size” fits all approach to this process, and there is no substitute for that experience. The evidence created at this stage of your case is critical in determining your outcome.
The law requires the injured worker to prove to the judge that the worker has a loss of earning power. The law does not require the insurance companies to prove anything. All the insurance company has to do is muddy the waters. They do this by offering the Court multiple opinions from multiple doctors and by offering multiple opinions about your loss of earning power. The legal team at Watson & Carroll can help you fight the games and tactics of the insurance company. We will make sure you have the best chance at walking away with the benefits you deserve.
Why Choose Watson & Carroll?
Workers who had legal representation receive larger workers’ compensation payments — nearly one-third more in benefits — than injured workers without attorneys, according to a 2015 survey done by Martindale-Nolo Research.
If you are worrying about medical debt incurred by your worker’s compensation claim, please reach out to Watson & Carroll so we can give you the best legal guidance possible. At Watson and Carroll, our workers comp attorneys take care of our clients from start to finish and beyond.
Handling a workers compensation claim can feel overwhelming. There is a lot you need to know about the law. Our team can help you through this process so you don’t ever feel alone. There’s a lot to know about the laws that apply to worker’s compensation. It’s confusing and stressful. Leave the hard work to experts so you can focus on recovering and resting.
We understand the workers’ compensation system. We will fight until we get payment for your work-related injury. Our top priority is making sure your rights are protected and we fight against debt collectors, lenders, and other creditors who try to collect on the medical bills incurred by your injury.
Sticking up for you is what we do best.
Watson & Carroll has been serving Nebraska since 2011. We are dedicated to providing aggressive representation to clients facing a variety of injury-related legal issues, including workers’ comp claims and Social Security disability. We have offices in Omaha and Sioux City. Call 402.991.2100 to speak to an attorney today or fill out our contact form and someone will reach out to you.