The Nebraska Supreme Court in Zwiener v. Becton Dickinson-East Ruled Against an Employer Who Wrongfully Believed that an Employee Waives Temporary Total Disability Benefits when the Employee Moves on from a Job that Could Have Accommodated Medical Restrictions.
Last month, in Zwiener v. Becton Dickinson-East, 285 Neb. 735 (2013), the Nebraska Supreme Court reasoned that it would undermine the beneficent purposes of the Nebraska Workers’ Compensation Act to conclude that an employee waives temporary total disability (TTD) benefits when the employee moves on from a job that could have accommodated medical restrictions. In Zwiener, the Claimant suffered a rotator cuff injury which arose out of and in the course of his employment with the defendant, Becton Dickinson-East. The Claimant was able to continue working without restrictions. Approximately 6 months later, for reasons unrelated to the accident, the Claimant resigned his employment and began working for another employer as a driver. At this time, the Claimant had not reached maximum medical improvement and did not seek a permanent impairment rating.
Two months later, the Claimant had surgery on his right shoulder and was released with restrictions which his current employer could not accommodate. Although the Claimant’s original employer did pay for the surgery, they did not pay for TTD benefits because they reasoned that if the claimant had stayed employed there, he would have been accommodated with light duty work and would have received a wage during that period. Unfortunately, a second surgery was scheduled and performed on the Claimant’s right shoulder. Interestingly enough, because the Claimant’s attorney anticipated that the employer would deny TTD benefits after the second surgery, he sent them two letters stating that the Claimant would be able to work for them with restrictions during the recovery period. However, the employer never responded to either letter.
At trial, the Judge, Thomas E. Stine, rejected the employer’s argument and awarded the Claimant temporary total disability benefits for the recovery period after his first and second surgery. The workers’ compensation judge explained that it was not logical to “mandate an internal return-to-work policy upon someone who is no longer an employee of the entity issuing the policy.”
On appeal, the Nebraska Supreme Court agreed with Judge Stine’s reasoning and noted that it would undermine the beneficent purposes of the Nebraska Workers’ Compensation Act if the Court were to accept the employer’s waiver argument. Importantly, the Court disagreed with the employer because the employer’s argument would “effectively bind workers to employers responsible for the injury until full recovery thereby limiting at-will employees’ mobility and freedom to choose other work opportunities.”
Practically speaking, this is yet another example of the Nebraska Supreme Court’s attempt to erode an employer’s ability to deny TTD benefits post termination. It is important for employers to understand their rights, responsibilities, and obligations to pay indemnity benefits under the Nebraska Workers’ Compensation Act. As the Court noted in its opinion, the Court “has consistently given the Nebraska Workers’ Compensation Act a liberal construction to carry out justly its beneficent purpose to provide an injured worker with prompt relief from the adverse economic effects caused by a work-related injury or occupational disease.”
For more information regarding an employer rights, responsibilities, and obligations to pay indemnity benefits under the Nebraska Workers’ Compensation Act, please contact Robert Seybert at email@example.com or (402) 475-1075.