UPDATED AS OF APRIL 7 | 2023 NEBRASKA WORKERS’ COMPENSATION LEGISLATIVE UPDATE
Visit the most recent legislative update here.
Each year, Baylor Evnen Wolfe & Tannehill, LLP actively monitors and reports regarding workers’ compensation legislation that impacts our clients. Since our initial legislative update, the Nebraska Legislature’s deadline for designating priority bills has passed, meaning that bills not prioritized, amended into a priority bill, or eligible to be considered on “consent calendar” (bills advancing from Committee with no dissenting votes and no opposition) are very unlikely to receive further consideration this session. Below we have identified those workers’ compensation bills designated as a priority by either a Committee or the Speaker or otherwise advanced to the General File this session. In addition, we have also listed the workers’ compensation bills that are unlikely to receive any further consideration this legislative session.
There are no additional committee hearings scheduled this legislative session and the Legislature has moved on to the General File stage of the legislative process. Every bill debated on the floor continues to be filibustered. The senators behind that approach have signaled they have every intention to continue it, which means the legislature will be able to process only a fraction of the priority bills in the time left in the session. As such, Senators are attempting to combine multiple bills to maximize the number of proposals subject to floor debate. Suffice it to say the situation is very fluid.
Priority Bills and Those Placed on General File
LB 191- Confidentiality of First Reports of Injury
This bill was named as the Committee Priority Bill for the Business and Labor Committee but has not yet been placed on the General File.
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.
LB 426 – Workers’ Compensation Court – Number of Judges
This bill has been placed on the General File (on February 16) and designated a Speaker Priority bill (on March 15).
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.
LB 460 – Workers’ Compensation – Mental Injuries and Illness
LB 46 was advanced to General File by the Business and Labor Committee on March 9th.
Introduced by Senator Mike McDonell (Omaha), LB 460 would require the Department of Health and Human Services to provide reimbursement for the cost of (a) a mental health examination by a mental health professional before or after entry into first responder service, and before the onset of the mental injury or mental illness for which compensation is sought; (b) initial resilience training; and (c) annual resilience training, to the extent such training is not reimbursed by the employer of a first responder.
LB 639: Change of Deadlines
LB 639 was placed on General File on March 3rd.
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.
We will continue to monitor the progress of legislation affecting workers’ compensation and provide further updates on any significant developments.
The bills listed below are those that were not identified as a senator, committee, or speaker priority bill and/or not placed on general file. They are unlikely to receive any additional consideration during this legislative session.
Remaining Workers Compensation Bills
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.LB 203-Patient Waiver – no action taken. This bill would require any employee filing a claim for workers’ compensation benefits to provide a patient's waiver upon the request of a compensation insurer, employer, or self-insurer to assist in the investigation of the employee's claim. Failure to provide the patient's waiver would toll the commencement of the 30-day period for purposes of liability under the penalty provisions of the Workers’ Compensation Act. The bill would exempt records relating to sexual abuse, human immunodeficiency virus, reproductive health conditions, mental health condition, unless seeking benefits for mental health injuries or alcohol or controlled substance abuse from being disclosed pursuant to a patient waiver.
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.”
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.
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.LB 380 – Workers’ Compensation – Fair Employment – no action taken.
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.
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.
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. Senator Vargas has filed a motion to withdraw this bill from consideration.
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.”