WHAT TO DO WHEN AN EMPLOYEE REPORTS AN INJURY

 

            Sooner or later just about every employer will need to deal with a workers’ compensation injury; in other words, an injury that is alleged to be within the course and scope of employment.  The employee is under a statutory obligation to give notice of any claimed injury “as soon as practicable.”  However, that is loosely interpreted and if an employer is, for example, aware that an employee needs time off to go to a doctor for a particular condition, and it is a condition that could even potentially be work related such will likely be sufficient notice even though the employee has not made any specific statement that such condition is work related.  If there is any potential that such condition could be work related, it behooves the employer to inquire further.

            The following are some suggestions for employers when handling workers’ compensation claims:

1.     Train all employees that they have the obligation to notify their immediate supervisor if they have any type of injury while working.  The supervisor should make it a practice to document all such information in one central location so that if the question of whether notice was given, and what the notice consisted of, becomes an issue later, they can verify whether or not such a report was made without having to rely solely on memory.

2.     If the injury looks like it is at all significant, it would be wise to have one person designated as the individual the supervisors or employees should then notify.  Certainly this should be done if the injury may potentially require any doctor’s visit or medical treatment.  Having one person designated to receive all such reports is helpful as there are various documents to fill out and notifications to be made so it is difficult for numerous supervisors, who most likely rarely handle such matters, to be fully trained on what needs to be done.

3.     The person who is designated to receive this type of notification, should ascertain whether immediate medical care is needed and obtain such if necessary.  They should interview the employee and find out the following information:  what happened, when did it happen, the names of all witnesses, the precise symptoms, and the precise area of the body involved.  The last fact is important since injuries to the head and torso are compensated differently than injuries to an extremity.

4.     An accident report should be filled out by the designated person receiving the report after talking to the injured employee.  Such should be signed by the injured employee. 

5.     There is also a Rule 50 choice of physician form that needs to be presented to the employee before any medical treatment is sought if possible.  If such is not done, the employee is free to choose any physician they may want whether they have ever seen that doctor before or not.

6.     Notice of the injury should be given to the employer’s workers’ compensation insurer in accordance with the particular insurance policy. 

7.     The insurer will then be in a position to give guidance as to whether the employer or the insurer will fill out the required First Report of Alleged Occupational Injury or Illness.  This Report must be filed with the Workers’ Compensation Court within ten days of the date of the notice of injury.  The injured employee is not responsible for filing this report, rather it is the employer’s or insurer’s responsibility.

8.     It is best to keep an injured employee working within the physical restrictions given by the doctor, even if only at part-time light duty, if at all possible.  The temporary disability benefits that must be paid under workers’ compensation are less if this is done but even more importantly, it keeps the employee engaged with their co-workers and their work and generally helps make an eventual return to work at their regular job more likely.

Finally, if it appears that the employee will not be able to return to work after a workers’ compensation claim, the employer must proceed with caution before terminating the employment.  Nebraska is an “at will” state, which means that the employment relationship only lasts as long as both the employer and employee want it to continue and either is free to end it for any reason as long as it is not due to an improper reason such as age, gender, etc.  However, the Nebraska Supreme Court has determined the employee has a separate tort action outside of any workers’ compensation action that can be brought in district court if their employment was terminated, or they were demoted, because they filed a workers’ compensation claim.  Jackson v. Morris Communication Corp., 265 Neb. 423, 657 NW 2d 634 (2003); Trosper v. Bag ‘N Save, 273 Neb. 855, 734 NW 2d 704 (2007). Therefore, an employer that terminates employment or demotes an employee after a workers’ compensation claim is filed will need to be absolutely sure it is well documented that such was not due to the filing of the claim itself.  If the employer cannot accommodate permanent restrictions, there is no requirement under this retaliation case law that the employee continue on the payroll but it should be clearly documented that this is the reason for the termination for employment.  Litigation may well arise whenever an injured employee’s job is terminated in this situation, and even though the employer knows such was not done in retaliation for filing a workers’ compensation claim, there will need to be sufficient evidence to convince the trier of fact of that as well.

 

Shirley K. Williams

skw@knudsenlaw.com

www.knudsenlaw.com

 

Senate advances two bills of importance to Nursing Homes.

 

             Two bills , the Elder Justice Act, S. 1070 and the Patient Safety and Abuse Act, S. 1577,  passed the Senate committee charged with passing on the bills to the full Senate.  The House committees had previously advanced the bills.

The Elder Justice Act would make $777 million in federal money available to government agencies and community programs that handle elder-abuse issues, establish a program to improve forensic investigation of crimes involving elder abuse, and impose stricter requirements for reporting criminal violations by long-term-care facilities and their staffs.   The bill also would create a council to coordinate the response of federal, state and local agencies to incidents of elder abuse and an advisory board composed of experts to develop a multidisciplinary plan to prevent crime against the elderly.

      The Patient Safety and Abuse Act sets up a nationwide data base for background checks on staff employed in the Nursing Home industry.   The new nationwide system would coordinate abuse-and-neglect registries and law enforcement records from each state with the FBI's national database of criminal history records.   If the bill is adopted, a nursing facility must conduct background checks of all applicants for positions with direct access to patients before hiring them.  Nursing facilities that fail to conduct the screening or knowingly employ a disqualified person in a direct-care position would face penalties, including exclusion from participation in the federal Medicare and Medicaid programs.

 

 

www.knudsenlaw.com

 

with thanks to Andrews Nursing Home Reporter

 

The Guest Statute

If you are injured in an accident in which one of your relatives was driving, you should consult with an attorney about your ability to recover damages from the driver of the vehicle.  The guest passenger statute provides:

[t]he owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person related to such owner or operator as spouse or within the second degree of consanguinity or affinity who is riding in such motor vehicle as a guest or by invitation and not for hire, unless such damages is caused by (1) the driver of such motor vehicle being under the influence of intoxicating liquor or (2) the gross negligence of the owner or operator in the operation of such motor vehicle.

For the purpose of this section, the term guest is hereby defined as being a person who accepts a ride in any motor vehicle without giving compensation therefore but shall not be construed to apply to or include any such passenger in a motor vehicle being demonstrated to such passenger as a prospective purchaser.  Relationship by consanguinity or affinity within the second degree shall include parents, grandparents, children, grandchildren, and brothers and sisters.  Should the marriage of the driver or owner be terminated by death or dissolution, the affinal relationship with the blood kindred of his or her spouse shall be deemed to continue.

Neb. Rev. Stat. § 25-21,237 (Reissue 1995).

The guest passenger statute has been found by the Supreme Court of Nebraska to be constitutional.  See Le v. Lautrup, 271 Neb. 931 (2006).  Such constitutional challenge involved a challenge on the basis of due process, equal protection, and the special privileges and immunities clause of the Nebraska Constitution. Id. at 935. The court addressed the due process and special privileges and immunities challenges in short accord, but spent more time in addressing the equal protection challenge.  Id. at 935.  In finding that the state had a rational basis for enacting the statute, that of the prevention of family collusion and fraud, the Court referred to an Indiana Court of Appeals opinion.

[T]he legislature may have perceived a greater risk of collusive lawsuits among family members, than among mere acquaintances.  Also, a jury may be particularly inclined to indulge in the “Robin Hood” tactic of robbing from the “rich” insurance companies to give to the “poor” victims where the parties are from the same family.

Id. at 938.

Other than constitutional challenges, the litigation with regard to the application of this statute happens most often in the context of exactly what the term “gross negligence” means.  Gross negligence is a moving target.

It must be borne in mind, always, that no decision on gross negligence can constitute an absolute precedent in any other case.  Each case necessarily differs somewhat in its particular facts and circumstances, and in the composite which results from them.  A dissection of the individual facts may, therefore, be misleading, because, in the attempted segregation, part of their real significance may become lost.  While it may be regrettable that no perfect yardstick for measuring gross negligence has ever been devised, the numerous decisions, which the guest statutes have produced, seem rather clearly to demonstrate that this is as close to possible to come to a judicial solution.

Klundt v. Karr, 261 Neb. 577, 582, 624 N.W.2d 30, 34 (2001) (quoting Liston v. Bradshaw, 202 Neb. 272, 275 N.W.2d 59 (1979)).  The Court acknowledged that most of the cases brought under § 25-21,237 and its predecessor dealt with intoxication, speed, failure to maintain lookout, and failure to control.  See Klundt, 261 Neb. at 583-5, 624 N.W.2d at 34-5 (citing Larson v. Storm, 137 Neb. 420, 289 N.W.2d 782 (1940) (plaintiff’s complaint that defendant was driving too fast, coupled with accident occurring when defendant hit a cement pipe after failing to make a slight turn, left question as to gross negligence); Jennings v. Lowrey, 168 Neb. 831, 97 N.W.2d 345 (1959) (reasonable minds could differ as to whether defendant’s actions in driving in excess of 60 to 70 m.p.h. around a curve in the middle of the night, causing the car to leave the road and roll, was gross negligence); Demont v. Mattson, 177 Neb. 277, 196 N.W.2d 190 (1972) (it was a jury question as to whether defendant’s driving down a hill on a winding, narrow, and unlighted road at 50 m.p.h., missing a turn, a hitting an embankment was gross negligence); Jones v. Foutch, 203 Neb. 246, 278 N.W.2d 572 (1979) (gross negligence found when unlicensed motorcyclist accelerated to 20 m.p.h. over the speed limit, in heavy traffic, driving between lanes and between cars, finally resulting in an accident when he failed to slow down for a turn despite plaintiff’s warnings)).

Jeanelle Lust

jlust@knudsenlaw.com

www.knudsenlaw.com