In a major victory for injured workers, the Nebraska Supreme Court ruled on Friday that a worker who injured her wrist and elbow on the same arm in the same injury could be paid on a loss of earning power (LOEP) basis rather than on a scheduled member basis.

In simpler terms, the worker could be paid on how her injuries affected her ability to earn a living rather than based on the percentage of impairment or disability given to her by a doctor. The case is a boon for blue collar workers whose stock and trade is manual labor whose work options are severely limited by the inability to use one arm – particularly if it is their dominant arm.

The case is particularly helpful for non-English speaking workers whose language skills further limit their job opportunities. The case clarified a split among trial judges in the Nebraska Workers Compensation Court over whether a two member injury on the same arm could be compensated on a loss of earning power basis.

How and why the court decided the way it did

The trial judge in this case decided that plaintiff’s right wrist and right elbow injury was an injury to an arm, not two members under Neb. Rev. Stat. 48-121(3). The statute states an injury to the arm below the elbow is paid for 175 weeks and an injury to the arm at or above the elbow is paid for 225 weeks.

A worker can get LOEP benefits if the damage to multiple scheduled members leads to a loss of earning power of at least 30 percent.

The employer in this case agreed that an injury to two hands could be paid on a loss of earning power, but argued the trial court was correct in finding that damage to a wrist and elbow on the same arm were not multiple members.

The trial court and defendant relied on a Supreme Court decision argued by this firm, Melton v. City of Holdrege, to hold that injuries on the same arm shouldn’t be paid on a loss of earning power basis.

In Melton, the court rejected an argument that an amputation below the knee should also included a total loss of the leg and toes under the so-called schedule of injuries. In essence Melton wanted to stack scheduled member injuries in a way that would have exceeded the total number of weeks for the loss of a leg.

The Nebraska Supreme court easily brushed off that argument pointing out that plaintiff was claiming loss of earning power benefits and not scheduled member benefits. The court also discounted arguments that the definition of member was ambiguous and that legislative history indicated that the law only applied to injuries involving two separate arms or hands.

Finally, the court cited the beneficent purpose of the act and stated that even if the employers arguments the statute was ambiguous were correct, that ambiguity should be resolved in favor of the worker. As an employee advocate, I was happy to see the court citing to the beneficent purpose argument.

What’s next?

For the immediate future, it will be easier for employees to get paid on a loss of earning power basis for injuries. I had a insurance defense lawyer change his mind on agreeing to a counselor for a loss of earning power basis for a wrist/elbow injury after the decision.

These types of cases will also be valued higher. In Espinosa that plaintiff was awarded a 13 percent impairment to the arm at or above the elbow which would entitle them to 29.75 weeks. If the plaintiff had been paid on a loss of earning power basis, they would have been paid at least the equivalent of 90 weeks. (This would be decreased by any weeks of temporary disability they were paid)

In the medium term, I would expect legislation from the defense side to “fix Espinosa”.  Also expect to hear lots of “flood of litigation arguments” from the defense side. I heard one of those this morning and pointed out that multiple-member cases are going to get litigated anyway as the defense bar usually attempt to frame multi-member cases as single member injuries or try to argue the two members didn’t arise in the same accident. Further many defendants fight the appointment of counselors to perform LOEP evaluations in multi-member cases which actually does create more litigation.

One reason why the defense bar fights the appointment of counselors in multi-member cases is that sometimes the motions succeed. Additionally, as the Espinosa court points out, the 30 percent LOEP hurdle is a meaningful barrier to getting loss of earning power benefit. If an employee is back in an accommodated job making a similar wage to what they were making before the accident, it can be difficult to get a judge to compensate a two-member injury on a loss of earning power basis.

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There is a lot wrong with this bill. But instead of some legal and economic analysis, I will criticize this bill through the story of a former client.

My former client, Doris Newkirk passed away on July 21, 2013 a few weeks short of her 91^st birthday. The last time I saw Doris was on July 10 of that year. Doris had been awarded permanent total disability benefits from a work injury in 2006. Her employers’ workers compensation insurer, Zurich, would check in with her every six months or so.

I provided the private investigator hired by the insurance company with the required professional courtesy. But the thought of “Do they think this 90 year-old woman is out doing Cross-Fit or something” was never far from my mental surface.

Anyway, the last time I saw Doris she was sound asleep in the middle of the morning in a nursing unit. The last time I saw her she was bright and alert in a facility where she lived relatively independently. I politely kicked out the investigator out of her room, who no doubt knew that my client wasn’t going back to work.

I stayed in Doris’ room for a few minutes. I felt attached to her. She was roughly the same age as my late O’ma who lived near the Lone Star Steakhouse by Oak View Mall in Omaha where Doris worked as a host. My Oma liked Lone Star, I wondered if her and O’ma had crossed paths.

I can’t remember how long Doris had worked at Lone Star before her injury on June 13, 2006 at age 83. Doris told the Nebraska Legislature in 2010 she started at Lone Star at age 71. (See her testimony at pages 68-69) But more importantly for the sake of this story, Doris worked because she needed the money.

Doris spent most of her adult life in Lincoln. She was proud of her work at Haviland-Swanson which was a high-end retailer in Lincoln. She didn’t get paid much. Her husband had done fairly well in the insurance industry, but medical expenses related to her husband’s relatively early death ate up the bulk of their savings.

Doris lived off of social security,  some small amount of private retirement and her earnings at Lone Star. She needed to work at age 83.

She also needed the workers’ compensation benefits she started receiving after the injury in 2006. Doris fell and injured multiple body parts after a co-worker accidentally knocked her back while she cleaning a bathroom. Her injury would not have fit into the narrow exceptions to the benefit cap under LB 443.

To their credit, Zurich insurance agreed Doris was permanently and totally disabled for the purposes of workers’ compensation in September 2007. If LB 443 had been the law at that time, her benefit checks would have stopped 10 ½ months before she died.

Doris was a remarkable person. My favorite story about her was when she returned to Lincoln to testify against legislation similar to LB443 in 2010. (See her testimony at pages 68-69 of this attachment) A friend of mine who worked in the Legislature at the time told me the Senator who sponsored the bill, Tom Carlson of Holdrege, spiked the bill after hearing Doris’ testimony and the testimony of other employees like her.

Capping workers’ compensation benefits is just one of many “economically conservative” or “fiscally conservative” measures that make supporters sound reasonable and even serious. But like other grand political economic theories, what sounds good in the abstract doesn’t look good when you apply in the real world. Back in 2009, the lived experience of my client and others like her was able to at least cut through an ideological cage for one state senator.

Let’s hope lived experience can triumph over bloodless economic theory again in 2023.

The post The cruel cost of capping workers’ comp. benefits for elderly workers appeared first on Workers' Compensation Watch.

But while Target employees undoubtedly suffered lost wages and medical expenses related to the trauma, those expenses will not be covered by workers’ compensation Nebraska.

The Omaha Police officer who shot the potential mass shooter likely suffered mental trauma as well. Under Nebraska law, medical expenses, lost pay and any permanent disability will be covered for police officers and other first-responders under the Nebraska workers’ compensation act. The officer may also be entitled to benefits for the injury in addition to workers’ compensation.

I think the Omaha Police officer should get workers’ compensation benefits for the mental trauma of the shooting. But so should the Target employees.

State Senator Carol Blood introduced legislation that could potentially cover those Target employees and other retail employees who are exposed to violence on the job. I’ve long written about the ongoing threat posed to convenience store clerks and their uncompensated mental injuries.

Retail workers get paid roughly half of what police officers make in Nebraska. That ratio excludes benefits likes defined benefit pensions which guarantee a livable a retirement income. First responders also garner respect and even reverence from the majority of society while retail workers are an after thought at best.

Police also train to respond to violence unlike retail workers. Although it’s arguable that any amount of training can prepare someone for the trauma of shooting someone who or witnessing a shooting. The hazy and undefined concept of “resilience training” is incorporated into Nebraska’s mental-mental statute at Neb. Rev. Stat. 48-101.01(4)(d). In practice “resilience training” serves as a way to argue that first responders weren’t didn’t suffer a mental-mental injury because they had training.

State Senator Tony Vargas introduced legislation to make “resilience training” irrelevant to whether a first responder is covered for a mental-mental injury under the act. I think this is a good idea. If this kind of logic applied to physical injuries you could have packing houses arguing that the overuse injuries weren’t work-related because workers stretched before their shift. The bill is a step towards treating mental trauma injuries the same as physical injuries.

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The horrific deaths of Cole and Walker on February 1, 1968 set off the Memphis sanitation workers strike where 1,300 mostly African-American public employees struck to protest poor working conditions including the defective garbage truck that crushed Cole and Walker. Martin Luther King Jr. gave his famous “I’ve been to the mountain top” speech in support of the striking sanitation workers in Memphis the night before he was assassinated.

Roughly six years ago I wrote a blog about how Dr. King’s support of the Memphis sanitation worker strike shows how the struggle for civil rights and workplace safety are intertwined.  Most educated people know King’s role in helping to enact anti-discrimination laws. His support for the Memphis sanitation workers likely also helped enact worker safety laws in the 1970s such as the Occupational Safety and Health Act which created OSHA.

Workers’ compensation laws were and still are state laws. But workers’ compensation laws weren’t adequate to protect Echol Cole and Robert Walker from being crushed to death in a trash compactor on the job. Something else has to be done. The creation of OSHA and the movement towards national standards in workers’ compensation were two steps taken the 1970s. Unfortunately whatever halting progress made by these reforms was more or less reversed by tort and workers’ compensation reform starting in the 1980s.

But at least in the judiciary branch, many states borrowed from civil rights laws and allowed workers to sue their employers for retaliating against them for pursuing workers’ compensation benefits. Workers’ compensation retaliation is probably one of the purest combinations of civil rights and workplace safety laws.

Combining workplace safety with civil rights laws in this way lead to decreases in workplace deaths such as the ones that claimed the lives of Echol Cole and Robert Walker.

Nebraska has permitted injured workers to sue their employers for workers’ compensation retaliation since 2003. But, there is a recent case that suggests that allowing workers’ to sue for retaliation and workers’ compensation is the kind of double-recovery not allowed by the so-called exclusive remedy rule of workers’ compensation. Workers’ compensation retaliation cases are allowed for now, but who knows what our state Supreme court may say about them in the near-future.

If Nebraska did adopt this rule, Nebraska would be in a minority of one states who would hold an injured worker has to choose between a retaliation claim and workers’ compensation benefits if they get fired after a work injury. It would be a bad decision for Nebraska workers and probably bad for workers overall as the insurance industry and/or anti-worker state governments try to replicate that decision in other states.

One quote frequently attributed to Dr. King is that “the moral arc of the universe is long but bends towards justice.” Right now the moral arc of the universe is jutting sharply towards injustice – it’s time to push the moral arc back in the direction it belongs.

The post The connection between workplace safety and civil rights is one aspect of the MLK legacy and how that legacy is under attack in Nebraska appeared first on Workers' Compensation Watch.

The maximum wage benefit rate for workers injured in 2023 who are covered by the Nebraska Workers Compensation Act will rise to $1029 per week from $983.00 in 2022. That is a 4.68 increase down from a t 7.5 percent increase last year.

Under the Neb. Rev. Stat 48-121.01 the maximum benefit rate shall be 100 percent of the state’s average weekly wage as determined by the Nebraska Department of Labor. The Governor has the power to suspend the increase under law, but has never exercised that power.

On an individual level, any worker making more than $80, 263 per week exclusive of overtime premium will be undercompensated by under Nebraska law.

Inflation and loss of earning power evaluations

The annual increase in maximum benefits is always a good reminder for me that while maximum benefits increase in Nebraska -which doesn’t happen in every state- benefits aren’t indexed for inflation.

I’ve written about case law where other states have taken wage inflation into consideration to benefit injured workers. Back injuries and injuries involving multiple members are paid on a so-called loss of earning power basis. Typically in an injury that involves a loss of earning power, treatment and recovery can take 18 months to two years.

But when a worker gets done treating and their loss of earning power determined they are stuck with the wage rate at the time of the injury. But their employer gets the benefit of wage inflation when loss of earning power gets determined. Average wages in Nebraska have increased by 12.58 percent since 2021. So employers can argue that the employee can earn X amount per hour or week when that number should really be decreased for inflation.

Employees also run into evergreen arguments about Nebraska having a labor shortage which usually serves to push down loss of earning power numbers. All the more reason to push the inflation argument.

Inflation arguments and vocational rehabilitation

While knee and shoulder injuries are not paid on a loss of earning power basis, they can be as disabling as back and hip injuries. Particularly for higher-wage workers, vocational rehabilitation can be an option for knee and shoulder injuries. Vocational rehabilitation or re-training is an option when an employee can not return to a job with similar pay. Put another way, it’s a similar test to loss of earning power. So arguments about inflation could help an injured worker gain eligibility for vocational rehabilitation.

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The NLRA protects the rights of employees to form unions and address working conditions also known as protected concerted activities. The NLRB general counsel believes that monitoring devices could discourage employees from engaging in those protected activities.

Employee monitoring in workers’ compensation

Employee monitoring for the purposes of injury reduction sets up a potential conflict between concerns over workers’ compensation and the rights of workers to organize and maintain dignity in the workplace. Monitoring and tracking injuries is one part of safety and one reason most states and the federal government require employers to track work injuries. Some employers have fought federal rules about injury record keeping.

But keeping data about injuries is only useful if it makes new discoveries and leads to changes in practices. At least when it comes to meatpacking, the workplace safety problem is largely about overuse injuries due to line speed. This is a long understood problem, so I question the utility of forcing meatpacking employees to wear monitoring devices for the purposes of reducing injuries when the solution to reduce injuries is well-known.

Use of employee-monitoring devices in workers compensation

What impact will employee-monitoring devices have in workers compensation? It depends on the state. I think the impacts could be minimal in Nebraska. Nebraska applies a contributing factor standard to causation which is a standard that generally favors employees. While employer data about how an injury could have or could not have happened can be persuasive, that data often doesn’t  take into consideration about specific details about why an employee may be more vulnerable to injury. In a contributing factor analysis, those individual factors are important. In contrast, that data may have more weight in states where causation standards are more favorable to employers.

Can the NLRB effectively regulate employee monitoring?

Though the National Labor Relations Board received a budget increase in the latest spending bill, that was the first time the NLRB had a budget increase since 2014. I believe there are real concerns over the NLRB’s ability to effectively curb employee monitoring because of staffing issues. Employees don’t have the ability to bring private suits, so they need to file administrative claims. I believe any successful claim would have to show how employee monitoring actually impaired the ability of employees to engage in protected activities.

On the upside, a recent NLRB decision could increase penalties against employers who violate the NLRA. Of course, this assumes federal courts will uphold the ability of the NLRB to levy increased penalties against employers.

Despite the possible shortcomings of the NLRB enforcement, I believe that it is good news for workers in Nebraska. Recently, the Nebraska Supreme Court made it more difficult for workers who bring workers’ compensation cases for also bringing state law employment claims. Federal law provides a parallel and unblocked avenue for injured workers in Nebraska to protect their rights.

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A study published by the MIT Review of Economics and Statistics shows states that adopted the public policy exceptions to employment at-will for retaliatory claims related to workers compensation claims lead to a reduction in workplace deaths and lead to overall increases in workplace safety.

The good news is that Nebraska started allowing these claims in 2003 in Jackson v. Morris Communications. The bad news is that a recent decision by the Nebraska Supreme Court could foreshadow the end of these claims.

In Dutcher v. Nebraska Department of Corrections, the Nebraska Supreme Court held that the so-called exclusive remedy provision of the Nebraska Workers’ Compensation Act precluded a state employee from bringing a disability discrimination claim under the Nebraska Fair Employment Practices Act if the disability was the result of a work injury.

Dutcher doesn’t address whether a workers’ compensation claim retaliation claim would be barred under exclusive remedy provisions.  The defense bar has pointed to footnote 37 of Dutcher to infer that the Nebraska Supreme Court would address this issue if it was brought to them.

Even if you don’t dig into footnotes, language in Dutcher talking about the “proliferation of failure to accommodate litigation over work injuries” stands in stark contrast to the Nebraska Supreme Court rejecting similar proliferation of litigation arguments in Trosper v. Bag n’ Save. Dutcher would also run counter to a reported federal decision, Clark v. Sarpy County, which cited Trosper to find that failure to reasonably accommodate a work injury would be workers’ compensation retaliation under Nebraska law.

In my mind, the MIT study would be a great addition to any amicus brief in opposition to a management-side challenge to Jackson v. Morris Communications.

Further I also believe the plain language of the Nebraska Fair Employment Practices Act allows for workers’ compensation retaliation.

Neb. Rev. Stat. §48-1114(1)(d) prohibits retaliation for inquiring about, discussing or disclosing information about wages, benefits or other compensation. In my mind this means workers’ compensation for two reasons:

1. Neb. Rev. Stat. 48-1229(6) has a very broad definition of wages that includes things like health and disability insurance. While it doesn’t include workers’ compensation, if you adopt 48-1229(6) definition of wages for Neb. Rev. Stat. 48-1114(1)(d), workers’ compensation should count as “other compensation.” I would argue that workers’ compensation which comprises both health and disability insurance is closely related enough to wages as defined by Nebraska law to count as “other compensation.”
2. If an employee is denied workers’ compensation benefits for an injury, they will often need to fall back on health insurance and/or disability insurance. Even if a workers compensation claim isn’t rejected or accepted right away, there is still a question, an inquiry if you will, about which employee benefit they should be using to cover the expenses of the injury.

Bluntly, the plain language of 48-1114(1)(d) indicates that workers’ compensation is covered under 48-1114(d)1.

NFEPA arguably also applies if an employee reports a work injury in connection with a safety condition that they reasonably violated some law. If supporters of workers’ compensation retaliation are looking to bolster the public policy arguments in support of workers’ compensation retaliation, they can find support within the NFEPA.

Finally, while courts are starting to narrow what constitutes a protected activity in retaliation cases, they aren’t wholesale throwing out retaliation cases as a cause of action. The MIT study shows the wisdom of the public policy exception for workers’ compensation retaliation in Nebraska and in the rest of the country.

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As temperatures and wind-chills plummeted, the familiar sounds of holiday bells rung out over parts of Lincoln.

But the tradition of holiday bell ringing to solicit donations for the Salvation Army has been marred by insurers/employers who see bell-ringing and other volunteer work as ways to force injured workers back to work.

These arrangements usually involve the employers paying their injured worker a salary, instead of temporary total disability, to work at or for a non-profit. This arrangement creates all sorts of problems for employees such as who they report to for work? There may also be language barriers when non-English-speakers injured at larger employers work for small non-profits without interpreters.

So why can employers get a way with just farming out their injured employees for volunteer assignments. After all, the Nebraska Workers Compensation Court regulates vocational rehabilitation programs through Neb. Rev. Stat. 48-162.01.

48-162.01 uses what amounts to a check list when it comes to vocational rehabilitation for workers. On top of the list is an employee going back to their old job to the bottom of the list – or the final step – is enrollment in a training program. Somewhere in the middle are new job with the same employer or new job with new employer.

Voluntold charity work is arguably neither a new job with a new employer or a new job with the same employer. The employer is still paying the employee, but they are working for someone else. If this was a permanent placement, it would be problematic to say the least.

Green v. Driver’s Management: Creating the legal gap for voluntold light duty?

I believe employers are exploiting a gap in Nebraska workers’ compensation law. Nebraska case law in Green v. Driver’s Management holds that an employee can’t get vocational benefits without permanent impairment or permanent restrictions. Arguably, if an employee is not at MMI, then the vocational rehabilitation rules don’t apply.

So how to employee’s answer those arguments.  First, the court will approve temporary loss of earning power evaluations. These involve vocational counselors as described by the 48-162.01 and court rules.  This practice is justified by the proposition that disability, whether it is temporary or permanent, can still determined by loss of earning power.

Secondly, the Green case holds that vocational benefits aren’t awardable without restrictions or impairments. If an injured worker is getting shifted into a voluntold job, this usually means they have some restrictions. If you concede that disability can mean the same thing whether it is permanent or temporary, then an employer shouldn’t be able to get around the vocational rehabilitation statute just because an employee is not at MMI?

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Paid maternity leave is nearly a luxury in the United States – particularly for lower-wage hourly workers in the service industry. But pregnant workers in Nebraska have some protections in the way of anti-discrimination laws and workers’ compensation laws.

But unfortunately, pregnant workers in Nebraska may have to pick between discrimination and workers’ compensation laws if work causes a miscarriage or complicates a pregnancy.

Filing a pregnancy discrimination claim if the discrimination causes a physical injury? Maybe not.

It would stand to reason that if an employer fails to accommodate a pregnant worker by giving them help with manual labor and that manual labor leads to a miscarriage or other complications, you would have both a pregnancy discrimination case and a workers’ compensation case.

The Nebraska Supreme Court might beg to differ.

In Dutcher v. Nebraska Department of Correctional Services, the Nebraska Supreme Court held that so-called exclusive remedy provision of the Nebraska Workers’ Compensation Case prevented an employee from suing their employer under the Nebraska Fair Employment Practices Act for being fired due to a disability that was caused by her work injury.

Dutcher is a bad employee’s case and it will get a full analysis soon. But one implication of Dutcher would be that an employer could argue that an employee is impermissibly trying to “double-dip” if they alleged pregnancy discrimination for a failure to accommodate that also caused a work injury where they collected workers’ compensation benefits.

Arguably, pregnancy is distinguishable in that pregnancy would not be a condition that be covered by workers’ compensation in Nebraska. Pregnancy isn’t caused by a work injury. Would an employer be forced to cover a pregnancy under workers’ compensation for a pregnancy from consensual sex on the job? Would an employee who was raped on the job be forced into the exclusive remedy of workers’ compensation if they were impregnated? The answer should be no and no. But I think Dutcher could quite possibly limit the protections of pregnant workers who get injured on the job when an employer fails to accommodate their pregnancy.

Pregnancy discrimination in Nebraska

Nebraska changed the Nebraska Fair Employment Practices Act to ensure employers of 15 or more to provided reasonable accommodations for pregnancy and pregnancy-related medical conditions. I would argue Nebraska law could provide more of a duty for covered employers to accommodate an employee with a disability. Nebraska law spells out specific reasonable accommodations for pregnant workers such as breaks, help with manual labor and temporary light duty jobs that aren’t generally required for disabled employees.

Damages under the Nebraska Fair Employment Practices Act can include back pay, front pay, attorney fees and compensatory damages. In plain language compensatory damages means pay for pain and suffering and emotional distress. Those pain and suffering damages aren’t available under workers’ compensation.

But what about employee’s working for employers with fewer than 15 employees? If they are employed in Omaha or Lincoln they can file a charge with a municipal human rights agency for failure to accommodate a pregnancy.  

If the failure to accommodate pregnancy causes a miscarriage or otherwise forces a pregnant worker to seek medical treatment, they can also file a workers’ compensation claim in Nebraska.

Workers’ compensation for pregnancy in Nebraska

I think miscarriages or other complications to pregnancy would be covered by workers’ compensation in Nebraska. I think this for two reasons: 1) Nebraska workers compensation covers work injuries from overuse or repetitive use and 2) Nebraska has contributing factor causation which means work can combine with other factors to cause an injury and still be covered by workers’ compensation.

All employees are covered by workers’ compensation in Nebraska from the first day of their employment. Workers’ compensation also covers all medical bills from a work injury. So even if an employee isn’t covered by the Nebraska Fair Employment Practices Act,  isn’t covered by  the Family Medical Leave Act and/or doesn’t have health insurance, workers’ compensation should cover any medical expenses related to a physical injury from an employer unreasonably forcing a pregnant worker to work.

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Convenience store clerks and fast food workers are routinely victimized in armed robberies. But depending on where they live, they may not have workers’ compensation for the mental trauma caused by being subjected to armed threats.

In workers’ compensation lingo these injuries are referred to as “mental-mental” injuries – mental trauma without a physical injury. If you read this blog, you know retail and fast food workers lack those protections in Nebraska.

But thanks to a social media interaction with a Louisiana workers’ compensation lawyer, Jenny Barber Valois, I found out that retail and fast food workers in Louisiana can receive workers’ compensation for mental-mental injuries that arise out of violent armed robberies.

The main advantage of Louisiana “mental-mental” law over Nebraska law, is that Louisiana law applies to all workers covered by their act. In Nebraska, only first responders can collect mental-mental benefits. Both Nebraska and Louisiana require workers to be subjected to unusual and extraordinary stressors on the job to be eligible for workers’ compensation benefits.

But Nebraska first responders would give up a lot of protections if Louisiana mental-mental law applied to them.

Louisiana law requires proof of mental-mental injuries by clear and convincing evidence, where Nebraska law only requires first responders prove their injuries by a preponderance of the evidence. Louisiana only allows psychiatrists or psychologists to testify as to causation of mental trauma injuries.

This is a tough standard because this excludes general practitioners who often provide mental-health care.  At least in rural Nebraska, this would be an even harder standard to meet due to the shortage of mental health providers.

In contrast, Nebraska law allows first responders to prove their cases with “mental health professionals” which allows general practice doctors and most counselors to help prove mental-mental injuries. Counselors are not defined as “Rule 10” experts in the Nebraska Workers’ Compensation Court.  This means their testimony could not be used to prove causation of a physical-mental injury for a non-first responder.

In short, Nebraska has great mental-mental workers’ compensation laws for first responders but non-existent protections for everyone else – including vulnerable workers like convenience store clerks and fast food workers. Louisiana at least provides a baseline of protection from mental-mental injuries to all workers, even their law raises difficult substantive and practical barriers to getting mental-mental benefits. I believe it would be a step in the right direction for Nebraska to adopt Louisiana’s baseline of protection for mental-mental injuries for non-first responders. Something is better than nothing.

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