by | Sep 2, 2020

The Nebraska Legislature concluded its most recent session with the passage of several bills, including LB 963, the First Responders’ Mental Injuries Bill under the Nebraska Workers’ Compensation Act. The bill was passed in recognition of the perceived unique challenges first responders face on a daily basis. The bill does two things: (1) it lowers the burden of proof necessary to prove that a work related mental injury is compensable, and (2) it increases the burial benefit for survivors of all employees, not just first responders.

Previously in Nebraska, the burial benefit was capped at $10,000.00 for all employees. LB 963, which in its final form, included LB 448 ‘Workers’ Compensation - Burial Benefit,’ raised the burial benefits to $11,000.00. The bill also built in an automatic increase to the burial benefit every year based on the consumer price index, rather than the state’s average weekly wage. The maximum percentage increase based on the consumer price index was limited to only 2.75% per year, and the minimum was set to increase by at least 1% per year.

With respect to first responders, an employee will now only need to meet three criteria to create a presumption of compensability for his or her mental injury. First, the employee must show that before the onset of the alleged mental injury, the employee underwent a mental health evaluation that presumably demonstrated no problems. Second, the employee must present testimony or an affidavit from a mental health professional stating that the employee is suffering from a mental injury. Finally, the employee must show that he or she underwent resilience training and updated that training at least once per year leading up to the injurious event, prior to the event that caused the injury.

Keep in mind, that this is only but one of two ways to establish compensability for a mental injury under Section 48-101.01 for first responders. Prior to the passage of LB 963, first responders could only prove their mental injury was compensable by showing: (1) the employment related condition which caused the mental injury was extraordinary and unusual in comparison to the normal conditions of that particular line of work; and, (2) provide medical evidence which shows how the unusual event caused the mental injury. LB 963 recognizes that much of what first responders face on a daily basis is unusual but not necessarily unusual to their particular line of work. The bill, while keeping the old standard, aims to provide an easier way for public servants to establish compensability.

If you have a case involving a first responder’s alleged mental injury or if you have questions about the new burial benefits, please contact Paul Barta or Micah Hawker-Boehnke for more information.