Category Archives: Workers’ Comp Q & A

What Happens If My Spouse Dies From A Work Accident Or Occupational Disease?

Today we have a guest post from our colleague Brody Ockander of Nebraska.

If a worker dies from a work accident or occupational disease, his surviving family members are entitled to death benefits under Nebraska workers’ compensation.

However, proving the death was work-related is sometimes complicated in situations where there is not a clear accident. For example, there are no death benefits for a worker who dies at work from natural causes simply because he died at work. Instead, it must be shown that work or something that happened at work somehow played a role in the death.

If your spouse dies due to a work-related injury or illness, you are entitled to workers' compensation benefits.

In situations that are not necessarily clear, especially when the insurance company tries to blame the death on some other reason or on natural causes, you will probably want to get a lawyer to help establish how the work or work exposure caused the death of your loved one. If you are able to show that the work contributed to the death, the worker’s family may be entitled to the following benefits:

Benefits for the surviving spouse:
If it can be established that work caused the death, the worker’s surviving spouse is entitled to workers’ compensation benefits every week at 2/3 of the worker’s average weekly wage at the time of death. This potentially lasts for the spouse’s life or until remarriage. If the spouse later remarries, then he/she is entitled to a lump sum payment for two years of benefits.

Benefits for surviving spouse with children:
If the deceased worker had dependent children and a spouse at the time of death, the surviving spouse is entitled to 60% of the worker’s average weekly wage plus 15% for each child. If the children don’t live with the surviving spouse, the spouse is entitled to 55% of the average weekly wage.

Benefits for dependent children:
If the worker is survived by dependent children, work comp benefits are paid to those children (in equal share) for their dependency or until age 19 (or age 25 if full-time student or the child is physically or mentally incapable of self-support).

Benefits for other family members:
There may also be benefits available for parents, brothers, sisters, grandparents, and grandchildren if it can be shown that they were dependents of the deceased worker. If dependency can be established, these types of dependents would be entitled to 25%.

Funeral Expenses:
The employer is responsible for funeral and burial expenses up to $6,000 whether or not the deceased worker had a spouse or any dependents. This was recently raised to $10,000 by the Nebraska Legislature in 2012.

NFL Concussion Suits Barred by “Exclusive Remedy”? Why can’t I sue my employer?

Today we have a guest post from our colleague Tom Domer or Wisconsin.

We get calls every day from angry injured workers who want to sue their employer for negligence. It could be an employer removing a guard on a machine, a foreman ignoring a safety rule, or an injury caused by an employer’s failure to train an employee. Many employees are genuinely and bitterly disappointed when we explain a worker cannot sue his employer for negligence and that his only “exclusive” remedy is through worker’s compensation.

Aaron Rodgers concussionIn liability suits filed by hundreds of former pro football players who suffer from concussion-related injuries, the players claim the league negligently mislead them about the dangers of concussions. Attorneys for the injured players indicate it is likely the NFL will argue that football players should be covered exclusively by worker’s compensation.

The deal cut by employers and workers in Wisconsin in 1911 still stands: Employers give up the right to common law defenses (contributory and co-employee negligence, assumption of risk) for a fixed schedule of benefits; employees give up the right to sue their employer in tort (and to recover tort-like damages) in return for worker’s compensation benefits. No matter how nefarious the employer or Continue reading

Beware Part Time Employment

Workers' Compensation will only cover you for the specific job on which you got hurt.

Today we have a guest post from our colleague Tom Domer of Wisconsin.

Wisconsin pays worker’s compensation benefits based only on the job on which an employee works, even if the employee’s injury makes it impossible for him to work in his regular job. In these difficult economic times, many workers are forced to take a second part time job to supplement their incomes. Unfortunately if the worker is hurt at the part time job, only the wages earned from the part time job will be used to calculate worker’s compensation benefits, even if an injury on the part time job means the worker will not be able to return to his full time job.

For example, a cook re-hired at a former wage by the restaurant where he was hurt could not claim a Loss of Earning Capacity based on his inability to return to his second job as a cab driver. Continue reading

Returning to Work Shouldn’t Be This Hard

Today’s post comes to us from our colleague Roger Moore of Nebraska.

Communicate with your doctor and follow a few guidelines to stay safe when you return to work.

In virtually all workers’ compensation cases an injured worker has to return to work in some capacity. Often these are very stressful situations and it is not uncommon for issues to arrise including conflict with an employer over what a safe return to work actually is. Your goal should be to continue to earn a paycheck while at the same time not risking further injury. Many times this is easier said than done.

Whether it’s a supervisor who ignores your restrictions or a human resources department that actively skirts them, issues frequently come up. We see employers do everything from requiring an injured worker to lift or stand more than they should, to pressuring an employee to return to work the day after a surgical procedure.

You can expect that a nurse case manager or HR specialist from your employer is communicating with your doctor’s office about your return to work. Sometimes they may misrepresent the work that they expect you to do upon your return. It is your job to fill in the gaps.

The most important thing an injured worker can do is communicate with his or her treating physician.

  1. Educate your doctor about the job you were doing when you were initially hurt.
  2. When you are assigned to work, educate your doctor about the light duty job you are doing.
  3. If you are assigned to a job that is difficult for you to perform due to your injury, talk to your doctor about what aspects of that job are difficult. The doctor will likely be willing to restrict you from doing that specific activity.
  4. If your employer is Continue reading

Workers' Comp' Q&A: Punching In


Today’s post comes to us from our colleagues Matt Funk and John Merlino of Brecher Fishman Pasternack Walsh Tilker & Ziegler in New York.

QUESTION: I DID NOT PUNCH IN FOR WORK.  DOES THIS MEAN I AM NOT COVERED IF I HAVE AN ACCIDENT?

ANSWER: IF YOU ARE AT WORK AND YOU DON’T PUNCH IN, YOU ARE STILL COVERED. PUNCHING IN DOES NOT START COVERAGE FOR A WORKER.

Joe was running late.  A custodian at The City College, a CUNY school, the minute he got onto the campus, his radio crackled with news of a boiler freaking out in old Sheppard Hall.  Rather than punch in, he ran straight to the boiler to take care of business. Running down the hall to the boiler room, he passed a bunch of students hanging out on the floor as young people are want to do.  And before you could say Workers’ Comp, Joe went flying through the air.  The boiler wasn’t the only thing that broke that morning.  So did Joe’s right ankle.

After the ER and the X-rays, and the cast and the crutches and the really great painkillers, Joe called his supervisor to put in a claim.  Imagine Joe’s surprise when his supervisor told him that because he hadn’t punched in before heading to the broken boiler, he was not covered.  Joe panicked.  That ER visit was going to cost a bundle, and it was a bundle he didn’t have.  What should he do? Continue reading