Workers Comp Questions

Do I need an attorney for my Work injury?

Employers are required to carry Workers’ Compensation Insurance.  The insurance company has numerous resources, including attorneys, defense medical professionals, including a nurse case manager who works for the insurance company all the time they claim to have your best interest at heart. They do not. The insurance profit model is based on paying you as little as possible for your workers’ compensation claim. Having an experienced workers’ compensation attorney on your side can help you navigate this process so you can concentrate on healing, or obtain the maximum compensation for your injury.

Do I have to go to the doctor the employer sends me to?

Nebraska law entitles you to see your usual physician if you have one. Your treating physician knows you best and can see the effect of your work-related injury. You can also change doctors, or see a specialist, if your Primary Care Physician refers you. You should not, and do not have to, settle for the insurance company’s suggested physician. In addition, you must comply with your treating doctor’s advice and restrictions to avoid further injury. If you do not follow your doctor’s suggestions, your workers’ compensation claim may be denied by the insurance company, and your benefits will reduce or cease completely.

What if I had a problem in this part of my body before a work accident but it is worse now?

If you had a preexisting injury that was made worse by a work-related injury, you are still entitled to benefits in Nebraska if your treating physician determines in their opinion the work accident made your previous injury worse. You should tell your providers about preexisting conditions, and be sure to tell your attorney truthfully whether you had an old injury. You should tell your doctor what you know of the details of your preexisting condition and how your work-related accident has worsened  this condition

How long can I stay on workers’ comp?

There is no simple answer to this question because it depends on the nature and extent of your injury and because there are several types of workers’ compensation benefits, each with different rules, and benefit timelines can vary depending on the nature and extent of your injury.

What if I can’t return to my occupation as a result of my injury?

If you have suffered a workplace injury and are unable to return to work, you may be eligible for vocational rehabilitation services through the Nebraska Workers’ Compensation Court. Depending on your loss of earnings the court may order a plan that brings you back to your earning power through retraining or even send you back to school. The cost of the retraining is paid by the State of Nebraska and you will receive 100% of your weekly benefit as long as you are successfully completing the Plan established by a Vocational expert tailored to your specific needs.

Probate Questions

What is Probate?

Probate is the legal process by which one’s assets are distributed after death.  The process includes: filing the will with the court (if there is one); publishing notice in the newspapers; filing an inventory of the assets and debts of the estate; satisfying creditors of the estate; paying inheritance tax if it is owed; and distributing the property to beneficiaries of the estate.

Do I need to file Probate if my loved one left a will?

Yes.  The will itself does not automatically great the nominated personal representative the ‘Letters of Probate.’  The court will have to verify the authenticity of your loved one’s Last Will and Testament before officially appointing the personal representative to administer the estate.

What if my loved one passed without a will?

If your loved one did not leave a will, you will file what is called an “intestate” probate proceeding.  Their property will pass to heirs pursuant to the State’s intestate statutes in the following priority:  Surviving Spouse; Children of deceased; Parents of deceased; Siblings of deceased; Grandparents; next of kin.

Can I use my Power of Attorney to transfer the property?

No.  A Power of Attorney Designation expires upon the death of the person making the designation and cannot be used to circumvent the Probate process.

How long does probate take?

Under the Nebraska Probate Code, the earliest an estate can be closed is four (4) months after the first published notice.  However, most estates take longer than four months to administer.  The exact time it takes to probate an estate depends on a variety of factors.  Factors that increase the length of a probate proceeding include, but are not limited to:  disputes over who should be personal representative; sale of real estate; difficulty locating all of decedent’s assets;

Can Probate be avoided?

There are some instances where it is not necessary to file probate of an estate.  If an individual’s assets were all jointly titled with rights of survivorship (or had a payable on death beneficiary), then you should be able to file the person’s death certificate with the appropriate entity to transfer the property.  Additionally, if an individual only had personal property (no real estate), and the value of the estate is less than $100,000, you may transfer the property with an affidavit if no other person has a right to the same, or if everyone who has an interest also signs the affidavit.

Child Custody and Child Support Questions

How to File a Petition to Establish Custody or Petition for Dissolution of Marriage?

Whether you are married to your child’s other parent or not married, the procedure to establishing custody of a child is basically the same. Filing for custody starts with either a Petition or Complaint to Establish Custody of Minor Child(ren) or a Petition/Complaint for Divorce. A custody or divorce complaint will state that the parties have a minor child (or children), that the person filing the complaint (Plaintiff) is fit and proper to be awarded custody of the children and that the person
receiving the complaint (Defendant) is capable of paying child support and should be ordered to contribute to expenses.

Winning the race to the court house (being the first to file) does not mean that the Plaintiff has won the custody battle, as long as the Defendant responds to the complaint. The Defendant has thirty days from the date they got served to file an “Answer and Counter Complaint” to the Plaintiff’s custody or divorce petition. The Answer and Counter Complaint typically denies many of the allegations in Plaintiff’s Complaint and states that the Defendant should be awarded custody and the
Plaintiff should pay child support.

What if the Opposing Party does not respond to the Complaint?

If the opposing party does not file an answer to the complaint, and fails to take the parenting class as required by law, they will be in “default.” The court will likely only approve a default parenting plan stating that the you shall have sole care, custody and control of the minor children, with visitation occurring solely at your discretion. Should the other party decide they want a parenting plan at a later date, they will be required to take the parenting class and participate in mediation before regularly scheduled visitation may occur.

What is Parenting Class & Mediation?

Because you are a party to a domestic-relations matter involving children, you will be required to attend a court-approved parent education program. No trial, final hearing or temporary hearing will be scheduled until you do so. The simplest way to sign up for the parenting class is to call your local courthouse and provide your case number. These classes are about two hours long.

The court will also assign a mediator to your case. The mediator assigned by the court will contact both you and the other party to set up the mediation. You will each meet with the mediator separately to discuss your concerns individually. Then you and the other parent will both sit down with the mediator and the mediator will assist you two in creating a parenting plan that best suits everyone’s needs. Sometimes parties do not reach an agreement in mediation and sometimes they only agree to some things, such as holidays. If an agreement is not reached in mediation, you and your child’s other parent may agree to a parenting plan at any time during this proceeding.

What is Temporary Custody Order?

Sometimes it is necessary to have an immediate hearing on custody of the children. This may occur when one party is in need of child support or is being denied access to the children. You may request a temporary order on custody and child support that will remain in effect until a final ruling in your case. A hearing on a temporary order is less formal than a trial and evidence is typically submitted by affidavit. These hearings are very short and the judge only addresses the issues that require immediate attention. Many times, these hearings are done in the judge’s chambers (behind closed doors) with only the attorneys present. Some judges have multiple temporary hearings, learning a little more about the case with each hearing. Some judges just like to set trial dates as early as possible.

What is "Parenting Plan"?

The goal of every custody case is to establish a parenting plan that meets the family’s needs and best interests of the children. Some parents can easily co-parent and are very cooperative in maximizing each parent’s time with the child. Some parents have a hard time communicating and getting along and need the courts to tell them how to co-parent. A parenting plan specifically addresses all the aspects of physical custody and responsibilities between the parties. Specifically, the plan will include the following:

  • Normal, day to day parenting schedule, stating when each parent’s time with the child will start.
  • Holiday and summer vacation schedules. Typically, one parent will get a given holiday in even numbered years and the other parent will get the holiday in odd numbered years. Holidays prevail over the regular visitation and the plan will state when each holiday begins and ends.
  • Transportation. The plan will specify who the children will be transported from one parent’s home to the other. If the parents live in separate towns, the parenting plan may state where the parties shall meet to exchange the children.
  • Extended family. Generally, each parent is responsible for providing their extended family with access to the child during that parent’s time with the children.
  • Extra-curricular activities. Usually, the plan will forbid a parent from planning or scheduling activities during the other parent’s time to thwart visitation.
  • Decision making. This is sometimes referred to as “legal custody”. Parties that can communicate typically have joint “legal custody” of the child where they share in the decision-making.
Is Child Support Mandatory?

Yes. Since the 1980s, the U.S. Congress has required each state to create a child support
enforcement office and child support guidelines to be applied (as a rebuttable presumption) in every custody case. The intent of this was to reduce the number of families receiving aid benefits when there is an able bodied, non-custodial parent capable of contributing to the support of the children. Your custody matter may have even been initiated by the State of Nebraska after the child received
some sort of aid.

The child support guidelines and calculations take both parents’ incomes into consideration. The parents providing health insurance for the minor child will get a credit equal to the cost of providing health insurance. If parties have joint physical custody, sharing close to 50% of the time, the child support obligation will be calculated using a “joint custody calculator”, which will yield a smaller support amount or none at all if the parties have roughly the same income. The courts are not permitted to set a child support amount that would reduce the payor’s income below the poverty level. While the child support guidelines are the presumption, the courts may deviate from the guidelines for good cause. This may include but is not limited to health issues of either party or the child, student loan payments, travel expenses of the non-custodial parent, etc.

The final custody order will also set out how parties pay for expenses such as daycare, extra- curricular activities and out of pocket medical expenses. These items are not included in the child support calculations. Many paying parents ask if they can request an accounting to show how the custodial parents spends the child support money. Nebraska does not allow for an accounting. Child support does not have to go the children directly and may be used to pay household expenses like rent, mortgage or utility bills which benefits the children.

Just like child custody, child support can be modified at any time until the child turns nineteen years old.

What if we can’t agree on custody?

Your custody case is a lawsuit. The end result of any lawsuit that does not settle is a trial. The judge will be presented with your case and the other parent’s case and render a decision. You may call witnesses to testify on your behalf and present documents (exhibits) to the judge just like on TV. Leading up to the trial, you are permitted to request documents and send written questions (called interrogatories) to the opposing party and they are free to do the same to you. If the child is old enough to voice an opinion, the judge may speak to the child, in what is called an “in camera interview”. This would take place in the judge’s chambers outside the presence of the parents due to sensitivity reasons. In some cases, it is necessary to appoint an attorney, called a “guardian ad litem” to represent the child’s best interest.

How much will this cost?

The cost of a custody case varies greatly. If two parents agree on everything, then the lawyers only have to draft the paperwork memorializing the agreements into a court order. This is considerably less expensive than a contentious custody battle resulting in a full-blown trial. You may ask the court to order the other party to pay your attorney fees, but judges have a considerable amount of discretion on this. In my experience, judges deny requests for attorney’s fees far more than they grant them.

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