The role of the Governor in deciding maximum rates is a good way to talk about the role played by the Executive Branch in Nebraska workers compensation law.
Nebraska’s maximum rate for workers’ compensation benefits will increase for 2021. The court has not announced by how much the amount will increase, but the fact that neither the State of Nebraska or the Nebraska Workers’ Compensation Court have announced there will be a hearing on the matter, means the rate will increase.
The process in which the maximum rate increases is a good way to discuss how the Executive Branch, can affect workers’ compensation in Nebraska. For now, that influence is limited, but as discussed below the influence may increase with a looming United State Supreme Court decision.
But to start, let’s talk about how the Governor can impact workers’ compensation in Nebraska and what the decision to increase Nebraska maximum benefit might mean in the near term.
The Governor and maximum benefit increases.
Most years, the maximum benefit increases for injured workers in Nebraska. Here is how the process works. Under Neb. Rev. Stat. 48-121.02 the Nebraska Department of Labor calculates the state average weekly wage which calculates the number of employees covered by the Nebraska Employment Security Act (unemployment) divided by their total wages. The Department of Labor then gives the number to Nebraska Workers’ Compensation Court. By law, this happens on October 1st.
The workers compensation court then gives this data to the Governor who has until November 15th to hold a hearing as to whether he or she will suspend maximum benefit rate increase. But by October 16th, the Governor must announce a public hearing. So unless the Governor notices a hearing by October 16, the maximum rate will increase by the amount calculated by the Nebraska Department of Labor. There are no hearings announced as of October 18, 2020, so it’s safe to assume the maximum rate will increase in 2021.
What does the maximum benefit increase mean in the big picture?
By law, the Governor needs to consider overall economic conditions and workers’ compensation costs in as factors in deciding not to increase maximum workers’ compensation benefits. This year I thought maybe the COVID-19 induced recession may have forced the business community to ask for some relief from workers’ compensation costs. Employers have been asking for overall liability shields related to COVID. However, for this year at least, it doesn’t seem like the Governor thinks workers’ compensation costs are enough of a concern to forestall an increase in maximum benefits.
The state executive branch and Nebraska workers’ compensation
Nebraska adjudicates workers’ compensation cases within our judicial branch unlike Iowa and other states who adjudicate workers’ compensation cases in the executive branch. 48-121.01 and 48-121.02 are one of the few direct mentions of the Executive branch agencies in the Nebraska Workers’ Compensation Act. The attorney general’s office has the ability to prosecute some fraud and employer misconduct and also is involved in vocational rehabilitation benefits.
Arguably the biggest influence the executive branch has over the Nebraska Workers Compensation Court is that the Governor appoints judges. But the ability of the Governor to appoint judges is reined in by a bi-partisan Judicial Nominating Commission. The Commission forwards the names of applicants for judgeships to Governor. The Commission serves as the equivalent of a judicial human resources department that screens qualified applicants for the Governor.
And unlike the federal judiciary, state court judges in Nebraska are subject to judicial retention elections. This system of judicial nominating committees and judicial retention elections is known as the Missouri Plan. However an upcoming United States Supreme Court case could change how state’s like Nebraska select judges.
Trouble on the horizon for Judicial nominating commissions?
Earlier this month, the Supreme Court heard a case from Delaware where a judicial applicant challenged a Delaware requirement that judges to their state courts retain a partisan balance on 1st Amendment grounds. Arguments in favor of the Delaware law pointed out that striking down this law could invalidate laws implementing judicial commissions in other states such as Nebraska.
A related challenge to judicial nominating committees could be the non-delegation doctrine which holds that Legislative branches can’t delegate their powers to other branches of the government or even private agencies. Non-delegation challenges have largely failed in Nebraska, but the addition of Brett Kavanaugh and likely addition of Amy Coney Barrett could mean the United State Supreme Court revives this doctrine. Nebraska law gives the Nebraska State Bar Association a role in selecting lawyer members of the Judicial Nominating Commissions.
If appellate courts held Nebraska’s methods of selecting judges is unconstitutional it would likely set off a legislative and political scramble.