2023 NEBRASKA WORKERS’ COMPENSATION LEGISLATIVE UPDATE
Each year, Baylor Evnen Wolfe & Tannehill, LLP is actively involved in proposing and supporting workers’ compensation legislation that favorably impacts our clients, as well as opposing legislation that is unfavorable to our clients. We hope that you find the following update helpful in assessing the legislative landscape of Nebraska workers’ compensation.
LB 5: Mental-Mental Injuries Resulting from Workplace Violence
With limited exceptions, mental injuries, which are unrelated to a compensable physical injury (i.e., mental-mental claims), are not compensable in Nebraska. This bill, introduced by Senator Blood, would create another exception to that rule when the mental injury was caused by workplace violence, and a “mental health professional” “establishes . . . the medical causation between the mental injury or mental illness and the workplace violence by medical evidence.”
“Workplace violence” is defined as “a shooting, hostage situation, act of terrorism, or similar act of violence occurring in the workplace.” Presumably, the intent of the bill is to address situations where the violence is in the course of the affected employee’s employment, but it does not make that clear. Nor does the bill specify if the affected employee was a victim of the violence, or witnessed the violence, or was nearby when the violence occurred, or saw video of the violence, or merely learned of the violence and experienced a mental reaction. Further, “similar act of violence” is not defined, and is an invitation for claims to be made that may not be consistent with the intent of the bill.
Previous amendments to the statute, which the bill is proposed to amend, defines “mental health professional” as any of the following licensed professionals: physicians, practicing psychologists, independent mental health practitioners, or professional counselors.
The public hearing on the bill was on February 13, 2023.
Click this link to view the full text of the bill.
LB 101: Exemptions to the Workers’ Compensation Act
An employer engaged in an agricultural operation is not subject to the Workers’ Compensation Act unless the employer employs 10 or more unrelated, full-time employees. Introduced by Senator Erdman, this bill would allow agricultural employers, who employ 10 or more unrelated, full-time employees, to obtain an exemption from the rights and obligations of the Workers’ Compensation Act, by filing a waiver with the Director of Insurance. The exemption would last one year and the employer could renew it each year as long as the employer is still employing 10 or more unrelated, full-time employees.
The bill goes on to provide that if an agricultural employer is exempt under this provision, that employer “shall be deemed liable for any injury occurring to an employee as a direct result of performing the duties associated with the job.” It goes further and provides that any “company contracting with such employer shall not be deemed liable for such injury, and an employee of such employer shall not be considered an employee of such company.”
It is not clear what this section means, or what problem it is intended to resolve. During the public hearing on February 13, 2023, Sen. Erdman generally described his concern that post-policy audits include chargeback premiums for workers’ who are independent contractors, not employees. He also mentioned that he intends to file an amendment in the near future. When he does, we will update our discussion of the bill and what problems it is proposed to resolve.
Click this link to view the full text of the bill.
LB 191: Confidentiality of First Injury Reports
Every employer is obligated to file with the Workers’ Compensation Court a “First Report of Injury” when an employee suffers a reportable injury. Such reports are considered public records, which anyone may obtain by requesting them from the Court. Some lawyers request them for purposes of soliciting the injured employees.
Introduced by Senator Halloran, this bill would require the Workers’ Compensation Court to withhold First Reports of Injury from disclosure to the public for a period of sixty days after the date of filing. The bill provides certain designated exceptions, such as when the report is requested by the applicable employee, employer, or attorney representing such parties, when the report requested is sought for the purpose of state or federal investigations or reports, or when requested by a court of competent jurisdiction. It is likely the bill will be amended to exempt news media from its application.
The public hearing on LB 191 will take place in the Business and Labor Committee on March 6, 2023.
Click this link to view the full text of the bill.
LB 203: Patient Waiver
This bill, introduced by Senator Riepe, would require any employee filing a workers’ compensation claim to provide a patient waiver, if requested by the employer, insurer or third-party administrator, so it may obtain the employee’s medical records. Records relating to sexual abuse, HIV, reproductive health conditions, and mental health conditions, are exempt unless the employee is seeking benefits for mental health or substance abuse treatment.
If an employee fails to provide a patient waiver, the employee is not entitled to waiting time penalties or attorneys’ fees, as the bill specifically tolls the commencement of the thirty-day period during which an employer or insurer must pay benefits for which there is no reasonable controversy.
The bill protects medical providers from criminal liability or civil damages if it releases medical information pursuant to the patient’s waiver.
The public hearing is scheduled for March 6, 2023, before the Business and Labor Committee.
Click this link to view the full text of the bill.
LB 272: Waiting Period
Introduced by Senator Vargas, this bill is identical to LB 207 and LB 846 from recent years. Its purpose is to reduce the “waiting time” period from seven to three calendar days, and reduce the “retroactive” period from six weeks to two weeks.
While this bill would provide for a limited increase in benefits payable to employees, the cost to employers will be substantially greater than the relatively small increase in benefits. The bill will likely cause a greater number of claims to be converted from “medical only” to “indemnity” claims, resulting in increases in modification ratings and premiums.
The public hearing is scheduled for March 6, 2023, before the Business and Labor Committee.
Click this link to view the full text of the bill.
LB 380: Fair Employment Practice Act
Introduced by Senator Conrad, this bill is in response to the holding in Dutcher v. Nebraska Department of Correctional Services, 312 Neb. 405, 979 N.W.2d 245 (2022). Dutcher was an employee who suffered a compensable work injury and was paid workers’ compensation benefits, including vocational rehabilitation. She was ultimately unable to find a position with the Department that would accommodate her physical restrictions, and her employment was terminated. She brought suit against the Department for wrongful termination on the basis of her disability, in violation of the Nebraska Fair Employment Practice Act (NFEPA). The Supreme Court held that Dutcher’s claim of discrimination under the NFEPA was barred by the exclusive remedy provision of the Workers’ Compensation Act, which bars recovery by the employee against the employer for “all claims or demands at law . . . arising from such injury.” It held that a discrimination claim under the NFEPA is one “arising from such injury”, reasoning that “ the Legislature had the ability to clearly exclude from the exclusivity provisions of the Nebraska Workers’ Compensation Act claims like the case at bar. Yet, it did not do so.”
Rather than simply excluding disability discrimination claims like the one Dutcher made from the exclusivity provisions of the Nebraska Workers’ Compensation Act, LB 380 provides that the rights and remedies provided by the NFEPA “are supplemental to those provided in the Nebraska Workers’ Compensation Act.”
LB 380 also makes workers’ compensation retaliation claims subject to the NFEPA. And, it provides that any civil action brought under the NFEPA entitles the employee to a jury trial.
The public hearing will be held on March 6, 2023, before the Business and Labor Committee.
Click this link to view the full text of the bill.
A further discussion of the holding in Dutcher can be found in one of our prior blog posts by clicking here: Dutcher v. Nebraska Department of Corrections.
LB 426: Number of Judges on Workers’ Compensation Court
Introduced by Senator Riepe on behalf of the Workers’ Compensation Court, LB 426 would reduce the number of judges on the Workers’ Compensation Court from seven to six, effective June 1, 2023. During the public hearing on January 30, 2023, Presiding Judge Fridrich provided data showing that there has been a decline in the number of petitions filed with the Workers’ Compensation Court in recent years. He asserted that six judges could effectively manage the current workload, and as proof of that, pointed to the Court’s recent experience when one of the judges was experiencing health problems and the other six judges were able to manage the caseload of the judge with health problems when he was unable to work.
Click this link to view the full text of the bill.
LB 443: Permanent Total Disability Benefits
Introduced by Senator Albrecht, this bill would provide for termination of permanent total disability benefits at age 72, unless an employee is injured after age 67, in which case total disability benefits would cease after five years.
There would be exceptions to this rule. The bill would not apply to certain types of injuries, such as paralysis, severe brain injuries, or total or industrial blindness. This provision would also only apply to injuries occurring after this bill is enacted.
Click this link to view the full text of the bill.
LB 460: First Responder Reimbursement for Mental Health Training/Examination
Currently, first responders in Nebraska are able to recover for purely mental injuries if they can show that they have, among other things, undergone annual resilience training and previously undergone a mental evaluation that presumably demonstrated no problems. This bill aims to cover the cost of the initial examination and continued training for first responders.
LB 460, introduced by Senator McDonnell, would require the Department of Health and Human Services to reimburse first responders for the cost of (1) the mental health examination, (2) the initial resilience training, and (3) the annual resilience training, to the extent the first responder’s employer does not reimburse the first responder for those costs.
The public hearing on LB 460 will take place in the Business and Labor Committee on March 6, 2023.
Click this link to view the full text of the bill.
LB 464: Mental-Mental Injuries for First Responders
Introduced by Senator Vargas, this bill would lower the burden of proof required of a first responder to prove they have sustained a compensable mental injury that is unaccompanied by a physical injury.
Currently, first responders may avail themselves to two exceptions to Nebraska general prohibition against recovering for a purely mental injury unaccompanied by a physical injury. The first exception requires the first responder to obtain an opinion from a “mental health professional” that the first responder was exposed to employment conditions which “were extraordinary and unusual in comparison to the normal conditions” of the first responder’s employment, and those conditions caused the first responder’s mental injury or mental illness.
The second exception requires the first responder to prove that: (1) Before the onset of an alleged mental injury, the first responder underwent a mental health evaluation that demonstrated the absence of any mental injury or mental illness; (2) prior to the event or events that the first responder alleges caused the mental injury or illness, the first responder underwent resilience training and updated that training at least once per year; and (3) the first responder suffers, according to the opinion of a “mental health professional”, from a mental injury or mental illness caused by one or more events or series of events which cumulatively produced the mental injury or mental illness.
LB 464 replaces both exceptions and provides that a first responder is entitled to benefits for a mental-mental claim if (1) the first responder is diagnosed by a “mental health professional” with a mental injury or mental illness, and (2) a mental health professional opines that the mental injury or illness was caused by “an event” occurring in the course of employment of the first responder.
The bill specifically provides that it is irrelevant whether or not the employment conditions causing the mental injury or illness “were an expected part of job duties” and whether the first responder has “received resilience training.” Though resilience training is irrelevant to a first responder’s right to recover for a mental-mental claim, if a first responder does undergo resilience training, the bill requires the Department of Health and Human Services to pay for the training.
The public hearing on LB 464 will take place in the Business and Labor Committee on March 6, 2023.
Click this link to view the full text of the bill.
LB 501: Cancer By Firefighters
Senator Cavanaugh introduced LB 501 to create a special category of occupational diseases in Nebraska for firefighters diagnosed with cancer. Generally following the construct of Presumptive Disability statutes for purposes of pension and retirement benefits, under LB 501, a firefighter diagnosed with cancer “that results in either temporary or permanent disability or death is an occupational disease and compensable” if: gislature.gov/FloorDocs/108/PDF/Intro/LB501.pdf">link to view the full text of the bill. Senator Cavanaugh introduced LB 501 to create a special category of occupational diseases in Nebraska for firefighters diagnosed with cancer. Generally following the construct of Presumptive Disability statutes for purposes of pension and retirement benefits, under LB 501, a firefighter diagnosed with cancer “that results in either temporary or permanent disability or death is an occupational disease and compensable” if:a) The cancer “develops or manifests itself out of and in the course of the employment” of a firefighter; and;
b) It is demonstrated that:
1) The firefighter (professional and volunteer fighters who have acted in that capacity for five or more years) was exposed, while in the course of employment, to a known carcinogen or substance reasonably anticipated to be a human carcinogen; and
2) Such carcinogen is reasonably associated with such cancer. The bill goes on to list an expansive series of substances deemed to be known carcinogens that are reasonably associated with specific types of cancer. However, this list is not exhaustive, and does “not preclude any person from demonstrating, on a case-by-case basis . . . that a substance is a known carcinogen or is reasonably anticipated to be a human carcinogen . . . that is reasonably associated with a cancer.”
After describing what “is an occupational disease and compensable”, the bill provides that there shall be a rebuttable presumption that a cancer experienced by a firefighter arose out of and in the course of employment if the cancer is diagnosed during the course of the firefighter’s employment.” The bill also creates a similar presumption for retired firefighters if the firefighter is diagnosed with cancer in a certain time period after the firefighter’s retirement. The time period would be based on how many years the retired firefighter served in such a capacity, multiplied by three months, but not to exceed a total of sixty months. The time period would start to run on the last day that the firefighter actually worked in “qualifying capacity,” not the day that the firefighter officially retired. The purpose of the rebuttable presumption is unclear, where the bill specifically defines what “is an occupational disease and compensable”. The public hearing on LB 501 is scheduled for March 6, 2023 in the Business and Labor Committee. Click this link to view the full text of the bill. LB 639: Change of Deadlines Introduced by Senator Carol Blood, LB 639 would require notice of hearings on proposed workers’ compensation rules be given at least fourteen days prior to the hearing by publication in a newspaper having general circulation in the state. Previously, the Nebraska Workers’ Compensation Act required thirty days’ notice. The bill would also change the requirement to return proof of service of the summons and petition from seven days to fourteen days. Finally, LB 639 would remove the current requirement that the Nebraska Workers’ Compensation Court hold a hearing within sixty days of the filing of the petition and the requirement for the entry of an order or award within thirty days after the hearing takes place. The bill does not replace these deadlines with alternative ones. Instead, it gives the Compensation Court more discretion as to when to schedule matters for hearing and when to render judgement. The public hearing on LB 639 was held on February 13, 2023 in the Business and Labor Committee. Click this link to view the full text of the bill. Baylor Evnen Wolfe & Tannehill, LLP has a long history of involvement in the Nebraska legislative process. We will continue to monitor these proposed changes during the course of this session and will provide updates as needed to keep you informed. If you have questions about a bill, please contact Dallas Jones, Paul Barta or Eric Sutton at 402-475-1075.