Nebraska Court of Appeals allows injured worker who was illegal alien to collect temporary total disability from worker compensation case. But because there was "no evidence the plaintiff intended to remain in the country as an unauthorized alien" the trial court's ruling that the plaintiff would be ineligible for vocational rehabilitation services was premature. Visoso v. Cargill Meat Solutions, A-09-339, 18 Neb. App. 202. The injured worker's work status is not involved in the definition of “alien.”

Nebraska Supreme Court holds that employer's appeal of worker compensation court judge's assessment of interest and waiting time penalties did not divest the trial court of jurisdiction over the benefits award itself. The Supreme Court upholds worker compensation court review panel's decision that delinquent interest accrues from the date each weekly benefit became due. Russell v. Kerry Inc., S-08-146, 278 Neb. 981 "the Court of Appeals incorrectly determined that the workers’ compensation trial judge did not have jurisdiction to entertain Russell’s second enforcement motion while Kerry’s appeal from the judge’s first enforcement order was pending before the review panel. We reverse that part of the Court of Appeals’ decision. But we affirm the Court of Appeals’ determination that under § 48-125(3), the review panel correctly assessed interest on Russell’s final award from the date that each installment of benefits became due to the date of Kerry’s payment."

Nebraska Supreme Court allows award for loss of earning power to injured truck driver who had previously received Social Security Disability Income benefits but returned to work under the Social Security Administration "Ticket to Work" program. Manchester v. Drivers Mgmt., S-09-062, 278 Neb. 776 Because Plaintiff had an earning power to lose, her receipt of Social Security benefits based on an earlier determination of total disability did not prevent her from recovering workers’ compensation benefits. ..the existence of the Social Security rehabilitative programs indicates that an individual once assessed by the Social Security Administration to be totally disabled is not expected to be forever unable to work. See 42 U.S.C. § 422 (2006).. Plaintiff participated in the "Ticket to Work" program and was working her way off Social Security disability. Because Plaintiff was able to resume gainful employment and had worked for Drivers Management for 13 months before the accident, the Social Security Administration’s determination that at one point in time she was totally disabled does not logically prevent her from later recovering workers’ compensation benefits for her loss of earning capacity due to a disability incurred in the course of her employment

Nebraska Supreme Court dismisses appeal from plaintiff's motion seeking an independent medical examiner to determine whether she required further medical treatment for work injury award from 1995. Judge's denying independent medical examiner was not a final order.Miller v. Regional West Med. Ctr., S-09-100, 278 Neb. 676 "The order of the single judge denying her request for an independent medical examination does not foreclose Miller’s ability to file a petition pursuant to § 48-173 seeking workers’ compensation benefits for her shoulder surgery...Because the requested independent medical examination is not a prerequisite to the filing of a petition under § 48-173 seeking benefits for the proposed shoulder surgery on this record, the denial of the request did not affect a substantial right and is therefore not a final, appealable order."

Nebraska Supreme Court finds a way around the law of the case doctrine on an appeal following remand. The Nebraska Supreme Court excepts law of the case doctrine and reconsiders worker compensation review panel's decision on injured worker's first trial that the worker compensation court judge should consider both the labor markets where the worker was injured and where she presently lived when evaluating the workers lost earning capacity. Money v. Tyrrell Flowers, S-07-681, 275 Neb. 602. At first trial judge found found the plaintiff had permanent and total disability because after her injury she moved to a small town that had few jobs. The worker compensation review panel reversed, requiring the trial judge to consider both the large and small towns' job markets. On retrial the trial judge found permanent total disability because the plaintiff was an "odd lot worker." The review panel then affirmed the trial court's odd lot worker ruling. Nebraska Supreme Court affirms, ruling that even if the the law of the case doctrine would have limited the trial court on retrial to considering the plaintiff's disability in the two labor markets, the Nebraska Supreme Court's intervening Giboo v. Certified Transmission Rebuilders 746 N.W.2d 362 (2008) decision merited excepting the first review panel's law of the case decision.

Nebraska Supreme Court agrees that the Worker Compensation Court may grant default judgments under § 48-162.03(1) but the party moving for a default judgment must give the defaulted party notice of the motion under Worker Compensation Court rule 3. Cruz-Morales v. Swift Beef Co., S-07-812, 275 Neb. 407 The plaintiff sued the Defendant Swift Beef for a work injury and Swift received proper service of process. Swift failed to answer and the plaintiff moved for a default judgment but sent the notice to the wrong address for the Defendant's third party administrator. "we (under 48-162.03) conclude that the Workers’ Compensation Court has statutory authority to enter default judgments, however the Plaintiff needed to send proper notice to the defendant. Worker Compensation Court rule 3 which requires notice of the motion is not more restrictive than Supreme Court pleading rule 5 which does not require notice of a default judgment in general civil actions, see Phillips v. Monroe Auto Equip. Co., 251 Neb. 585, 558 N.W.2d 799 (1997) {worker compensation court rules may not be more restrictive than civil court rules as to admitting evidence}.

Injured worker who sometime after her work-related accident moved from Omaha to a smaller community could ask the court evaluate her lost earning capacity based upon her access to the labor market in the smaller community, as long as she could show her move was in good faith. Giboo v. Certified Transmission Rebuilders, S-07-139, 275 Neb. 369 "when an employee injured in one community relocates to a new community, the new community will serve as the hub community from which to assess the claimant’s earning capacity, provided that the “change of community was done in good faith, and not for improper motives.” Like the South Dakota Supreme Court (Reede v. State, Dept. of Transp., 620 N.W.2d 372 (S.D. 2000)), we believe the claimant carries the burden to establish that the move was made in good faith and not for the purpose of exaggerating the extent of his or her difficulty in finding suitable employment. If the claimant cannot show a legitimate motive behind his or her post-injury relocation, the community where the claimant resided at the time the injury occurred will serve as the hub community."

Omaha worker compensation insurer finds niche servicing small-town employers. BlackEnterprise.com. The nation's most profitable commercial insurer, dollar for dollar, is located in Omaha, but it's not the widely known Berkshire Hathaway Inc. It's FirstComp Insurance Co., which is making a name for itself nationwide by selling only workers' compensation insurance and targeting small businesses and small towns. The company's high profits, accompanied by growth, are the result of what FirstComp executives say is dedication to giving small-town business owners and their insurance agents simple, hands-on service that's often lacking in the insurance world. The customers of small-town agents typically include close friends and relatives, FirstComp executives said. Agents don't want to have to apologize if an insurance adjuster is rude or late paying a claim, or if a customer must negotiate a voice-mail maze to get a question answered. "It has to do with making their lives easy" and giving personal, human service, said Bob Phaneuf, president of FirstComp's underwriting group. Voice mail? Outsourcing calls to foreigners? "It'll never happen here," he said. Now FirstComp is taking two steps designed to enhance its growth at home and in the southeastern United States. It will move into five newly renovated floors this month in downtown's Central Park Plaza at 15th and Douglas Streets, and it will open its fourth regional office, in Tampa, Fla. The changes come after National Underwriter, an insurance trade journal, ranked FirstComp's six-year average operating profit, in relation to its premiums, as No. 1 among 116 companies that write commercial property-casualty policies. FirstComp's profitability ranked third out of 219 property-casualty insurers in the country. The rankings don't include earnings from investments but rather reflect a ratio of claims, operating expenses and other costs compared with premium revenue. The lower the "combined ratio," the better the profit picture. FirstComp's combined ratio over the past six years averaged 82.3, which was two points lower than the second-place company. Some companies have ratios over 100 percent and stay in the black through earnings from their investments. FirstComp has investment earnings, too, but Phaneuf said it can be dangerous to expect investments -- which can be volatile -- to bail out operating losses year after year. FirstComp's premiums for 2007 increased 39 percent to $519 million. The company increased its customers from 60,000 businesses in 26 states about a year ago to 85,000 in 28 states today. This year, the company plans to add Alabama, Delaware and West Virginia. That growth has boosted employment from 516 to 615 in the past year, including 400 in Omaha. The total should reach 700 by the end of 2008. That's why the company is adding office space at Central Park Plaza, including the floor that once housed the headquarters of ConAgra Foods, said Chris Reichert, vice president of sales and marketing. FirstComp recruits heavily from the University of Nebraska in both Omaha and Lincoln and from Creighton University, seeking people with what Reichert called an Omaha-style blend of courtesy, articulateness, knowledge, competitiveness and a desire to help customers solve problems. A typical FirstComp customer has never had a workers' compensation claim, he said. The employee involved is likely to be a close friend and key staff member who has suffered an injury or illness that is causing severe personal and business problems. So the business manager who calls FirstComp may be nervous, upset and unfamiliar with the process of filing a claim. That's why FirstComp always answers customer service calls in person, 90 percent of the time by the second ring of the phone, Reichert said. "We sound like we care, because we do care," he said. FirstComp's underwriters, customer service operators and other staff members are motivated by knowing that they can help people in difficult times. FirstComp, from its founding in 1997, also has an advantage in its computer system, which the company developed on its own, Phaneuf said. He said it is fast, easy to use and dedicated to respecting agents' time demands by being efficient and helpful. The result is that the 7,500 local agents who sell FirstComp coverage may recommend its policies even when they cost slightly more, he said. Nearly all new business comes into the company via its Internet Web site, requiring minimal staff time. That's good because each policy sale is small, averaging a $5,000 premium per year. Often it is less than $2,000. Many of the businesses are so small that they haven't been able to get regular workers' compensation insurance and instead have paid for expensive coverage from state-sponsored insurance pools. Adding up all those tiny businesses, FirstComp now has about 1 percent of the nation's workers' compensation business. In states where it has operated for many years, its share can reach nearly 10 percent. That leaves plenty of room for growth, Phaneuf said, both in new states and within states where FirstComp already operates. There are no plans to branch into other types of insurance. "We stick to our knitting," he said.

No intervention on appeal for insurer left out of worker compensation hearing loss case. Employee won permanent total disability from his employer in the Nebraska worker compensation court but he appealed to the review panel to back-date his date of disability. One of the employer's worker compensation insurers discovered after the award that it would be responsible for the award and petitioned to intervene in the appeal. Nebraska Supreme Court holds that although 48-161(1) permits the worker compensation court to determine coverage issues, it is not required to resolve them. The worker compensation court review panel did not err when it refused to permit the left-out insurer from defending itself during the review proceedings. Risor v. Nebraska Boiler, S-07-269, 274 Neb. 906. "(Worker compensation) proceedings are designed to furnish summary and speedy (hearings) for the particular purpose of compensating an injured employee. While, under § 48-161, the compensation court may determine the existence of insurance, such jurisdiction is not exclusive. We agree that joining an insurer and deciding coverage disputes may hinder rather than further the beneficent purposes of the Act. As such, § 48-161 does not authorize post-award intervention when the employee has chosen to bring a claim against the employer alone. " The omitted insurer likewise did not suffer a failure of procedural due process from the fact that (omitted insurer) was not notified of (injured worker’s) action against Nebraska Boiler and was not made a party to the proceedings before the review panel

Temporary Total Disability (TTD) may extend beyond 300 weeks, Nebraska Court of Appeals affirms worker compensation court review panel order to reinstate an injured workers TTD beyond 300 weeks and awards the injured worker attorney fees for an obtaining an increased award. Heppler v. Omaha Cable, A-07-365, 16 Neb. App. 267 Under § 48-121(1), a worker’s entitlement to temporary total disability benefits is not capped at 300 weeks. We affirm the decision of the review panel in all respects.

No action against general contractor by subcontractor's employee from construction site accident. Eastlick v. Lueder Constr. Co., S-06-721, 274 Neb. 467 . Bricklayer fell off scaffolding he and a co-worker negligently assembled and of course his attorneys needed someone other to blame. Bricklayer sued the general contractor who had nothing to do with the masonry subcontractor's work. Dodge County District Court gave summary judgment to the general contractor and bricklayer appealed. Nebraska Supreme Court (J. Wright) affirms summary judgment. Unlike the Omaha Public Power District in Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993), who kept its own safety personnel constantly checking the work site, the general contractor had nothing to do with the masonry subcontractor's own scaffolding. Closer to the mark the Supreme Court finds that as in Hand v. Rorick Constr. Co., 190 Neb. 191, 206 N.W.2d 835 (1973), "the instrumentality (scaffolding) which caused the injury was not the premises, but, rather, was the equipment owned, controlled, and erected by the subcontractor, who was the employer of the injured worker. The general contractor had no right to control the subcontractor's equipment. The duty of a general contractor to employees of a subcontractor extends only to providing a reasonably safe place to work as distinguished from apparatus, tools, or machinery furnished by the subcontractor for the use of his own employees.”

Nebraska Supreme Court leaves jurisdictional and other questions unanswered in underinsured motorist case where the State was a defendant and worker compensation subrogee. Nebraska Supreme Court holds that § 44-6413 RRS Neb (barring uninsured/underinsured motorist claims when the statute of limitations on the underlying claim has expired) did not bar injured state employee's underinsured motorist action because the plaintiff settled her negligence claim against the primary tort-feasor within the four year statute of limitations period § 25-207 RRS Neb. Reimers-Hild v. State, S-06-203 274 Neb. 438 . The State of Nebraska and its underinsured motorist carrier raised the defense of 44-6413 that the Plaintiff sued after the statute of limitations had expired. Plaintiff was injured in an automobile accident while in the scope and course of her employment with the State of Nebraska. She received worker compensation from the State and also settled for the primary tort-feasor's liability insurer liability limits of $25000. The State had uninsured/underisnured coverage on the state vehicle the Plaintiff was in at the time of the accident but self-insured damages of up to $300000. The plaintiff did not file a tort or contract claim against the State. Instead the Plaintiff sued the State more than four years after the accident and later added its underinsured carrier . The Nebraska Supreme Court reverses, refusing to consider the defendants jurisdictional claims. "we hold that § 44-6413(1)(e) does not apply when an insured has settled his or her claim against an uninsured or underinsured motorist before the statute of limitations applicable to that claim would have expired. T he district court erred in concluding otherwise." The Surpeme Court noted several of the future questions it will no doubt play with: what will be the correct statute of limitations? Did the Plaintiff need to file either a tort, contract claim or both against the State before filing suit Did sovereign immunity or worker compensation immunity apply?

Manufacturer of medicated livestock feed was a grist mill and not a medical packaging company for worker compensation insurance costs. Nebraska supreme court affirms judgment against manufacturer of medicated animal fee and in favor of Travelers Insurance, the assigned risk carrier for Nebraska worker compensation insurance. Travelers Indemnity Co. v. International Nutrition, S-06-063, 273 Neb. 943 The defendant applied for worker compensation insurance through the Nebraska assigned risk pool, which Travelers administers. When Travelers audited the insured business, it applied a retroactive rate increase, reclassified theindustry from medical packaging to grist milling, charged the assigned risk rate and sought prejudgment interest. The District court ruled in favor. The district court approved of Travelers' using the NAIC worker compensation manuals to determine worker classifications and billing policies. Nebraska Supreme Court affirms. given the plain and unambiguous language of the insurance policy and the application of the nCCI basic Manual, travelers had the authority to correct International nutrition’s classification code and retroactively apply the corresponding change in premium. travelers did not breach the insurance contract, nor did it waive its right to change the classification code as a result of its decision not to

Thank you Nebraska Supreme Court for keeping lawyers busy when business was starting to dry up. The supreme court (J Connolly, again) extends its ruling in Jackson v. Morris Communications Corp.265 Neb. 423, 657 N.W.2d 634 (2003) , that allowed retaliatory discharge actions for injured workers who sued their employers to almost any kind of adverse employment action in Trosper v. Bag 'N Save, S-05-889, 273 Neb. 855 This ruling comes at just the right time as the Nebraska Worker Compensation court most recent annual report shows that job injuries and claims have steadily fallen for the past 9 years. All is not lost for business though, because the Nebraska Supreme court will copy and paste all employment discrimination law from the glorious federal government to carry out its quest for more attorney fees and justice.

Nebraska Supreme Court affirms Worker Compensation award for asbestos induced mesothelioma that plaintiff's doctors diagnosed more than 20 years after his retirment from the employer but orders no disability payments to plaintiff's widow. No nod to Daubert in this opinion with shaky evidence for the plaintiff. Olivotto v. DeMarco Bros. Co., S-05-1526The plaintiff was a concrete and terrazzo installer for the defendant until his retirement in 1980Although he did not work with asbestos, former co workers testified that asbestos was around their work areas. He did not claim any occupational injury or disease. He died in 2004 from mesothelioma. His widow sought worker compensation benefits from the employer. The worker compensation court awarded disability and medical costs for the asbestos exposure. The review panel affirmed the award but reversed the disability benefits. Supreme Court affirms the award, but reverses the extra award for out of pocket expenses to the widow and agrees that the widow should not get any disability payments. Without mentioning Daubert or Nebraska cases following its rule, the Supreme Court restates its relaxed rule for admitting expert testimony on medical causation in worker compensation cases. Basically if the doctor can say anything to justify his conclusions, the court may let it in. In a workers’ compensation case, a witness must qualify as an expert and the testimony must assist the trier of fact to understand the evidence or determine a fact in issue. T he witness must have a factual basis for the opinion, and the testimony must be relevant. Veatch v. American Tool, 267 N eb. 711, 676 N .W.2d 730 (2004). A determination concerning the sufficiency of the foundation for an expert’s opinion is left to the discretion of the trial court. We conclude there was sufficient evidence to support the medical opinions of Drs. Connor and Deschamps, and the trial court did not abuse its discretion in admitting such evidence."

District Court can't deny worker compensation insurer just because local attorneys want to keep more money from a third party settlement. Nebraska Supreme Court rules that under 48-118, equitable estoppel may not deny worker compensation insurer subrogation in third party claim. Burns v. Nielsen, S-06-030Fedex carrier was injured while delivering a package to a customer's home. During the worker compensation litigation Fedex disputed some compensation and medical treatment, but later settled the case. The employee then settled a large injury claim with the property owner from where he fell. The district court denied Fedex any subrogation on equitable principles because it disapproved of the way Fedex handled the worker compensation case. Supreme Court reverses. "the district court’s duty under § 48-118.04 to “order a fair and equitable distribution of the proceeds of any judgment or settlement” simply requires the court to determine a reasonable division of the proceeds among the parties. The court in this case erred in applying equitable principles to bar FedEx from recovering any of its subrogation interest."

Worker Compensation revisions in LB 588 on final reading: the Legislature, tries to cut back on high hospitalization costs by pegging worker comp medical fees to Medicare guidelines. Still the lawyers can keep the MRI mills going because they are exempt for now from the tougher guidelines. The Unicameral also throws in a consolation earmark to the trial lawyers with Senator Nantkes amendment expanding the kinds of injuries that might qualify for loss of earnings capacity awards (but it is still optional if the functional award is greater.) Unicameral Update Online Workers' comp hospital fee schedule moves forward “LB 588 makes three major changes to the hospital fee system, exempts diagnostic providers and expands injuries eligible for loss of earning power awards. First, the bill would establish a prospective payment system for in-patient hospital services. The intent of the new system would be to provide consistency and produce savings for employers and payors. The proposed fee schedule would be based on the payment method used by Medicare. The bill would account for differences between individual hospitals by incorporating hospital-specific Medicare rates into the fee schedule and then increasing those amounts by 40 percent. Second, the bill would establish a "prompt payment" provision with the intent of reimbursing hospitals in a timelier manner. Finally, the bill would incorporate provisions from LB 77, a bill originally introduced by Lincoln Sen. Danielle Nantkes. The bill would provide that certain injured employees could be reimbursed according to their loss of earnings capacity, rather than according to the schedule set in statute. According to Cornett, the provision would ensure that at least a portion of the savings created by the new hospital fee schedule would be passed along to the injured worker. Omaha Sen. Steve Lathrop offered an amendment, adopted 28-0 that would exempt diagnostic related groups for traumatic injuries from the new proposed inpatient hospital fee schedule until 2010.”

If you’re hurt on the job don’t have your employer also be your doctor: Hospital employee injured in scope and course of employment who claims additional injuries from negligent medical care from the hospital may not sue for malpractice because of the exclusive remedy provision of the Nebraska Worker compensation law Bennett v. Saint Elizabeth Health Sys., S-05-1306, 273 Neb. 300 “Plaintiff argues that because the second injury to her shoulder occurred while she was a patient receiving medical treatment from Saint Elizabeth Hospital, we should permit her to sue the hospital for additional negligence damages. Saint Elizabeth urged the Supreme Court to affirm, arguing that Plaintiff’s injuries were covered by the Workers’ Compensation act and the acts exclusive remedy provisions (48-101, 48-111, 48-112, 48-148 RRS Neb). “We agree with Saint Elizabeth and conclude that the district court did not err when it concluded that Bennett’s medical malpractice action was barred by the exclusivity provisions of the Workers’ Compensation act, granted summary judgment in favor of Saint Elizabeth, and dismissed the action. Because the consequential injury is covered, plaintiff’s exclusive remedy for this injury is under the Workers’ Compensation act, and recovery is not available in a medical malpractice action against Saint Elizabeth. Despite the “covered” nature of her injury, Bennett accordingly, we affirm.”

US Supreme Court overrules Ninth Circuit decision that restricted creditors' attorney fee claims in Bankruptcy Court.TRAVELERS CASUALTY & SURETY CO. v. PACIFIC GAS AND ELECTRIC CO.No. 05-1429. SCOTUS slaps the Ninth Circuit again like a red headed step child. Chapter 11 debtor Pacific Gas & Electric insured itself for California worker compensation claims and acquired a bond through Travelers to make sure Pacific could cover worker compensation claims. When Pacific Gas filed chapter 11 Travelers requested additional security and sought provisions for additional attorney fees through the claim proceedings. The federal district court and the Ninth Circuit agreed that the attorney fees provision was not allowed citing Ninth Circuit precedent In re Fobian, 951 F. 2d 1149 (CA9 1991) Supreme court reverses, finding that the bankruptcy code does not prohibit categorically attorney fees that arise solely from bankruptcy issues. The Fobian rule finds no support in the Bankruptcy Code, either in §502 or elsewhere. In Fobian, the court did not identify any provision of the Bankruptcy Code as providing support for the new rule. Congress, of course, has the power to amend the Bankruptcy Code by adding a provision expressly disallowing claims for attorney’s fees incurred by creditors in the litigation of bankruptcy issues. But because no such provision exists, the Bankruptcy Code provides no basis for disallowing Travelers’ claim on the grounds stated by the Ninth Circuit. Justice Alito declined to consider Travelers' belated argument that 506 which considers secured claims somehow limits unsecured attorney fee claims.

Follow up: no worker compensation suicidal State Patrolman's relatives Zach v. Nebraska State Patrol, S-05-449, 273 Neb. 1. Nebraska Supreme Court reverses court of appeals ruling that called for the patrolmans family to have a chance to prove their case at trial. When the family alleged that the patrolman suffered solely a mental stimulus from learning that he had stopped a bank robber and let him go, resulting in suicide the stimulus was neither an accident nor an occupational disease. See 48-151(4) and 48-101 /RRS Neb. it is speciically alleged that the changes to Zach’s brain were caused by “being advised of the con-sequences of an injury caused by a mental stimulus does not meet the requirement in §48-151(4) that a compensable accidental injury involve “violence to the physical structure of the body.” accordingly, the court of appeals and the review panel of the Workers’ compensation court erred in concluding that the operative petition stated a claim for accidental injury arising out of and in the course and scope of Zach’s employment with the nebraska state patrol error,” which is clearly a mental stimulus. based upon principles articulated in Bekelski and subsequent cases, under current nebraska law, a compensable injury caused by an occupational disease must involve some physical stimulus constituting violence to the physical structure of the body. because the injury in this case is alleged to have resulted entirely from a mental stimulus, no claim is stated for injury caused by occupational disease.