UPDATED AS OF JUNE 9 | 2023 NEBRASKA WORKERS’ COMPENSATION LEGISLATIVE UPDATE
Each year, Baylor Evnen Wolfe & Tannehill, LLP actively monitors and reports regarding workers’ compensation legislation that impacts our clients throughout the legislative session. Since our last Legislative Update, the 2023 Session concluded and was formally adjourned at 4:30pm on Thursday, June 1. While only 56 bills were sent to the Governor this session, amendments to those bills resulted in approximately 290 measures being approved. Thus, the total number of bills passed is comparable to prior sessions, even though it required the “packaging” of multiple bills together.
The following bills concerning Nebraska workers’ compensation were signed into law by Governor Pillen this session. LB 191, introduced by Senator Steve Halloran (Hastings) and designated as a priority bill by the Business and Labor Committee. The bill, as originally introduced, would have provided limited confidentiality for first injury reports. The confidentiality of first injury report provisions were removed from the bill due to their controversial nature and the final version of the legislation contained the following provisions:
- 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 upon entry into such service or subsequent to such entry, 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 not reimbursed by the employer of a first responder.
- Require notice of hearings on proposed WC regulations to be given at least 14 (was 30) days prior to the hearing by publication in a newspaper having general circulation in the state.
- Remove the requirement that a hearing be held within 60 days of the filing of the petition for compensation and for the entry of an order or award within 30 days after the hearing.
- Require a service of summons upon the filing of the petition to be made within 14 (was seven) days after the date of issue.
- Divert a portion of self-insured employers’ assessments (2.5% of prospective loss costs) from the state’s General Fund to the Workers’ Compensation Court Fund to address budgetary needs of the Workers Compensation Court.
Also receiving final approval from the legislature was LB 799, a bill to increase judges’ salaries which contained, in part, provisions of a bill introduced by Senator Merv Riepe (Ralston), which will reduce the number of judges on the Nebraska Workers’ Compensation Court from seven to six effective June 1, 2023.
All remaining bills introduced this Session that addressed workers’ compensation will be carried over for further consideration next session. Those bills are:
- LB 5 - WORKERS' COMPENSATION-MENTAL INJURIES AND MENTAL ILLNESS: allow recovery of benefits for mental injuries and mental illness unaccompanied by physical injury for an employee whose mental injuries or mental illness were caused by workplace violence (shooting, hostage situation, act of terrorism, or similar act of violence occurring in the workplace) if the employee establishes, through a mental health professional, the medical causation between the mental injury or mental illness, and the workplace violence by medical evidence.
- LB 203-WORKERS’ COMPENSATION-PATIENT WAIVER: 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 272 - WORKERS’ COMPENSATION-WAITING TIME: reduce the “waiting time” period from seven to three calendar days and the time period to allow compensation to be paid from the date disability began from six weeks to two weeks.
- LB 380 - WORKERS’ COMPENSATION-FAIR EMPLOYMENT PRACTICE ACT: establish an unlawful employment practice under the Nebraska Fair Employment Practice Act for a covered entity to discriminate or retaliate against an individual because the individual has reported a work-related injury, brought a claim, or sought remedies under the Nebraska Workers’ Compensation Act.
- LB 443-WORKERS’ COMPENSATION-TOTAL DISABILITY BENEFITS: provide for termination of total disability benefits at age 72, unless an employee is injured after age 67, in which case total disability benefits shall cease after five years from such compensation having been paid. The bill would exempt spinal cord injuries and severe brain or closed-head injuries and total or industrial blindness from the limitations on total disability benefits.
- LB 501 – WORKERS’ COMPENSATION-FIREFIGHTER CANCER: Would deem cancer that results in either temporary or permanent disability or death to be an occupational disease and compensable under the Nebraska Workers’ Compensation Act 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 designates a series of substances deemed to be known carcinogens that are reasonably associated with specific types of cancer and would create a rebuttable presumption that 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, including retired firefighters for cancers diagnosed within a period, not to exceed 60 months, from the date of retirement extended for a period equal to three months for each full year of employment.
Baylor Evnen Wolfe & Tannehill will monitor proposed legislative changes that may develop before the 2024 legislative session and, as always, publish legislative updates on this blog once the 2024 session begins.