Injured worker due disability despite taking new job: Neb. high court

Injured workers who leave their employer to take a better-paying job cannot lose their temporary total disability workers compensation benefits, in part because their higher wages do not reflect their reduced earning capacity, the Nebraska Supreme Court has ruled.

Pat Zweiner injured his shoulder in August 2009 while working for medical technology firm Becton, Dickinson & Co., and his injury was believed to be a muscle strain. In March 2010, he left Becton to work as a driver for Sapp Brothers Inc., where he received better pay, according to court records.

Mr. Zweiner later found out that he had tears in his right rotator cuff and shoulder tendons. In May 2010, Becton paid for Mr. Zweiner's shoulder surgery in connection with his 2009 work injury. Mr. Zweiner was unable to return to work at Sapp Brothers until July 2010, after recovering from the surgery.

Becton declined to pay TTD benefits to Mr. Zwiener during his recovery period, contending that Mr. Zweiner could have continued to receive pay for light duty work if he had remained with Becton. Becton also declined to provide TTD benefits to Mr. Zweiner after a second shoulder surgery, which required him to stay off the job at Sapp Brothers from January to April 2012.

Nebraska's workers comp court found that Mr. Zweiner should receive TTD benefits of $11,308 for his two recovery periods. Becton argued that Mr. Zweiner was not eligible for TTD once he left the company because he did not take part in Becton's “aggressive” return-to-work program. However, the court ruled that program should not apply to former employees.

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In its ruling Friday, the Nebraska Supreme Court unanimously upheld the TTD ruling. The court found that a worker's eligibility for TTD benefits depends on his or her “diminished employability or impairment of earning capacity, and does not directly correlate to current wages.”

The Nebraska high court also said Nebraska case law has found that employees should keep their TTD benefits even if they leave or are fired from their jobs.

“Adopting Becton's waiver argument would not only undermine the beneficent purposes of the Nebraska Workers' Compensation Act, it 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,” the Nebraska high court ruled in remanding the state workers comp court for further proceedings.