Tag Archives: mental injury

Mental trauma from misguided mass shooting drill not covered by workers’ comp., but employer could be subjected to civil claims

Posted on by

While most employees in Nebraska can’t collect workers’ compensation for purely mental injuries, a recent “mass shooting drill” by a misguided employer should serve to remind employers than employees can sue their employers outside of workers’ compensation in some circumstances.

“I tell my clients you can’t just shoot your employees.”

I remember a longtime management defense lawyer telling me that about the liability-limitations imposed by the so-called exclusive remedy provision of workers compensation.

I think the same goes for pretending to shoot your employees. Those employees could be able to skirt workers’ compensation laws and sue their employers for infliction of emotional distress.

There may that kind of case here in Nebraska.

When workers’ compensation isn’t the exclusive remedy for employer stupidity

The Omaha World-Herald reported on Thursday about a mass shooting drill conducted by Catholic Social Services. The drill included a questionable person shooting blank rounds out of a gun in the office. The drill also involved staged causalities who appeared wounded and bloody.

Even the conservative Douglas County attorney called the drill a “bad, bad idea.”

I first wrote about these mass shooting drills in 2019 when I read about a mass-shooting drill at an Indiana school. That drill involved shooting people with paintballs. I wrote that while the physical injuries from being shot with a paint ball would be covered, the mental trauma from being in that drill would not be covered under Nebraska workers’ compensation.

In Nebraska, only first responders as defined by law, are covered by the Nebraska Workers’ Compensation Act for mental trauma injuries. A social worker for a non-profit or a teacher would not be covered under the Act.

But, and maybe I’m burying the lead here, if a workplace injury isn’t covered by workers’ compensation then an employee or their survivors can bring a tort claim. So, if an employee is exposed to mental trauma that isn’t covered under workers’ compensation, the exclusive remedy of workers’ compensation doesn’t bar that claim.

The exclusive remedy of workers’ compensation limits the amount that employees can recover in exchange for not having to prove fault. Employees are limited to having medical bills paid and getting a percentage of their income paid based on how a work injury effects them. In a tort or civil case, employees would have a theoretically unlimited recovery. In railroad injury or FELA cases, where injured workers do have to prove some fault, those recoveries can dwarf what an employee could collect under workers’ compensation.

Tort claims for employee emotional distress claims

Now just because an employee isn’t barred by the exclusive remedy of workers’ compensation from suing their employer, doesn’t mean they automatically have a claim. Employees would still have to show that their employers has a duty to protect them from mental distress, they breached that duty and that the breach of duty was the proximate cause of the mental distress.

I’m not aware of any tort claims that have been brought to address the effects of mass-shooting drills. But based on the reactions to Catholic Social Services mass shooting drill, I would feel somewhat confident about a such a claim surviving a motion to dismiss.

While mass shooting drills gone bad garner attention when it comes to workplace torts, retail clerks are routinely subjected to mental trauma from actual violence. I think these workers should be covered under workers’ compensation for mental trauma. But non-unionized retails clerks lack the political clout of law enforcement. Maybe civil cases will be the sole avenue to address this issue for the foreseeable future.

The benefit of workers’ compensation over tort or civil claim

But civil litigation is risky and more generally more expensive than workers’ compensation. In my experience workers’ compensation, at least in Nebraska, is often a better deal for plaintiff’s than a civil case for a non-catastrophic injury.

The role of unions in preventing emotional distress claims

Another way to regulate workplace safety and (employer stupidity) are unions. Teachers’ unions have pushed back against the kinds of mass-shooting drills done by non-union employers like Catholic Social Services. Unions could be part of the solution for retail worker as well. Recently, workers at Starbucks have won an increasing number of union elections. A Chipotle outlet in Michigan also recently unionized. I hope increased retail worker organizing can protect retail workers for the effects of violence — both physical and mental.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , , , .

Mental health care provider shortage hits injured workers in rural Nebraska particularly hard

Posted on by

The shortage of mental-health care providers in Nebraska makes it harder for rural residents to get prompt care for mental injuries on the job; harder to prove cases for mental injury at work

Nebraska has a shortage of mental-health practitioners that is particularity serious in rural areas. This shortage of mental health providers delays and impairs the recovery of injured workers in Nebraska who suffer a mental injury as a result of physical injury or a mental injury on the job. It also makes these claims harder to prosecute.

Quick Review: Who gets mental injury benefits in Nebraska

Unless you are a first responder as defined by Neb. Rev. Stat. 48-101.1, an injured worker can only be covered for a mental injury if it is related to a physical injury. This can happen with any kind of injury, but in my experience it is most common with head injuries.

First responders in Nebraska, can collect for purely mental or “mental-mental” injuries. The definition of first responder has been generally expanded from police and firefighters to include corrections officers and mental health technicians in our state mental hospitals.

Volunteer firefighters are also eligible for workers’ compensation benefits including mental-mental benefits.

How the lack of mental health care providers effects a workers’ compensation claim

I believe the first drawback for injured workers is delayed treatment. Delayed treatment can lead to more severe permanent injuries

Maybe when everything goes smoothly in a workers’ compensation case, which usually isn’t happening if an injured worker is calling a lawyer, a delay in treatment can lead to longer payment of temporary total disability benefits.

But even assuming those temporary benefits are fair, workers’ compensation benefits aren’t designed to fully compensate employees for work injuries. But workers give up full payment for the promise of prompt payment of benefits. But if mental health practitioners aren’t available, injured workers will not get prompt medical treatment for a mental injury.

The lack of mental health providers in rural areas deprives rural workers a substantial part of the so-called grand bargain of workers’ compensation – prompt payment of defined benefits for work injuries.

Another element of the grand bargain are less formal rules of evidence and procedure that should make it easier to prove cases for injured workers. But again, the lack of mental health providers in rural areas makes it harder for rural workers to take advantage of that aspect of the grand bargain as well.

But even if mental-health practitioners are available, they may not qualify as expert witnesses under Nebraska workers’ compensation law.

Many mental health treaters aren’t qualified to testify by report

In Nebraska only a psychologist or a medical doctor is qualified to testify to submit a written report about a mental injury in a workers’ compensation case. The inability of physicians’ assistants or nurse practitioners to testify by report is already a problem for Nebraska residents in more remote areas of the state. The same issues would apply to counselor who isn’t a psychologist who treats an injured worker for a mental injury.

But while the small town nurse practitioner and counselor who treat mental work injuries don’t qualify as so-called Rule 10 experts in the Nebraska workers’ compensation court, the hired gun MDs and PhDs in Lincoln, Omaha or Denver who insurers and claims administrators send rural workers to do qualify as Rule 10 experts.

Lawyers for injured workers can sometimes fix these issues. Sometimes MDs or psychologists will endorse the findings of counselors. Other times a plaintiff’s lawyer can arrange for a medical examination. But neither of those approaches is fool-proof when it comes to litigation. But even when those tactics work in a case, they often don’t address the problem that an employee is not receiving prompt mental health treatment when it is needed.

Other solutions?

A lawyer would be free to call a counselor to testify live at a workers’ compensation trial, but that depends on the counselor’s willingness to cooperate in litigation. (Sure, you can subpoena a witness, but that’s not a great option.)

Congress looks likely to pass increased funding for mental-health in response to publicized mass-shootings in Uvalde, Texas and Buffalo. Hopefully the funding is adequate to help address the mental-health care provider shortage in Nebraska.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , , , , , .