NEBRASKA – TERMINATION & TTD MEMO – 2016
In Nebraska, temporary disability is the period during which the employee is submitting to treatment, is convalescing, is suffering from the injury, and is unable to work because of the accident. Total disability exists when an injured employee is unable to earn wages in either the same or a similar kind of work that he or she was trained or accustomed to perform or in any other kind of work which the employee’s mentality and attainments could perform. The general rule is TTD benefits are paid by the employer or insurance carrier until the employee reaches maximum medical improvement for all work related injuries.
An employee terminated for cause does not forfeit his/her TTD benefits simply because the employer would have accommodated light duty work in lieu of benefits. The landmark Nebraska case with regard to termination and TTD benefits is Guico v. Excel Corp., 260 Neb 712, 619 N.W.2d. 470 (2000). In this case, the Employer denied payment of TTD because employee was terminated for failure to properly use safety equipment. The employer further alleged that they would have provided accommodated employment but for employee’s termination for cause. The Nebraska Supreme Court held “If an employer is entitled to a credit against any workers compensation benefits for payments it would have made to the employee had the employee not been fired, most, if not all employers would fire employees as soon as they suffered an injury in an accident arising out of and in the course of their employment. Such conduct is not acceptable. In this case, as in most cases, the employer has a choice. That choice is to put the employee to work in a light duty position or pay workers’ compensation benefits. Termination is not an option.” Manchester v. Drivers Management, LLC, 278 Neb 776, 775 N.W.2d 179 (2009).
TTD benefits have also been upheld in some situations wherein employees were incarcerated and unavailable for employment stating that “…if a claimant can prove a loss of earning capacity, his or her incarceration after a compensable injury is not an event that bars the claimant’s receipt of disability benefits….” Damme v.Pike Enterprises, Inc., 289 Neb 620, 856 N.W.2d 422 (2014).
The bottom line is that in Nebraska there is very little opportunity if any for an employer to challenge continued payment of TTD benefits for post-injury misconduct. Therefore, we recommend carefully considering whether it is more beneficial for the employer to terminate the employee and continue to pay benefits, or if an alternative solution can be proposed to address the situation. Please contact us to discuss other potential options that meet the employer’s need in situations involving this kind misconduct.