A worker sustained a shoulder injury arising out of and in the course of his employment. The injury was originally diagnosed as a strain, and he was advised that he could continue working without restrictions. Later, he resigned and found other employment with better pay.
The worker's shoulder injury continued to bother him, and he was diagnosed with a tear to the rotator cuff and other tendons. Surgery was recommended. After surgery, he was released to return to work with the restriction of not using his right arm.
His new employer could not accommodate this restriction, so he did not work during his recovery. The former employer agreed to pay for the surgery but denied payment of temporary total disability benefits during the recovery period.
The former employer reasoned that, if the worker stayed employed there, it would have accommodated his restrictions and he would have been able to continue to receive a wage during that period.
The worker underwent a second surgery, and his new employer was again unable to accommodate his restrictions. The worker's attorney wrote to the former employer asking whether it would allow the worker to work light duty during his recovery period.
The former employer did not respond and denied TTD benefits for the recovery period.
The worker sought TTD benefits. The compensation court held that he was entitled to TTD benefits for the periods he was unable to work due to his post-surgery restrictions. The former employer appealed.
Was the compensation court correct in awarding TTD benefits?
A. No. The worker waived TTD benefits by moving on from his job with the former employer to employment that did not accommodate his restrictions.
The worker had a total loss of earning capacity during the time he was recovering from surgery and was entitled to TTD benefits.
Under the former employer's return-to-work policy, the worker's restrictions would have been accommodated had he continued to work there.
How the court ruled: B. The Nebraska Supreme Court held that the worker was entitled to TTD for the periods he was recovering from the surgeries necessitated by his work-related shoulder injury. Zwiener v. Becton Dickinson-East, No. S-12-563 (Neb. 04/19/13).
The court explained that a worker is totally disabled when he is unable to earn wages. The level of a worker's disability does not directly correlate to his current wages.
The court said that adopting the former employer's waiver argument would undermine the purposes of workers' compensation and bind workers to employers responsible for the injury until full recovery.
A is incorrect. The court explained that it never held that a worker who ceases to work for an employer forfeits temporary disability benefits because the employer would have accommodated light-duty work in lieu of benefits.
C is incorrect. Although the worker would have been accommodated had he continued to work for the former employer, the court pointed out that employer-employee relationships are generally at will. A worker is free to leave an employment relationship without recourse from the employer.
Editor's note: This feature is not intended as instructional material or to replace legal advice.
June 17, 2013
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