In 2004, the Nebraska Supreme Court reiterated that mental injuries alone are not compensable under Nebraska Workers’ Compensation Act. See the case: Sweeney v. Kerstens & Lee, Inc., 268 Neb. 752, 688 N.W.2d 350 (2004).
However mental or psychological injuries are covered if an employee suffers a physical injury and subsequent mental injury as a result of the workers’ injury and results in disability.
Examples of certain types of mental injuries which MAY be compensable as a result of a work injury includes post-traumatic stress disorder, anxiety, depression, and phobias.
However the injured worker has the burden of proof on two fronts.
- The employee must show that the physical injury caused the mental or psychological injury, AND
- The employee may need to show the physical injury is permanent.
The Sweeney case stated in which worker is entitled to recover compensation for a mental illness, if it is a proximate result of the worker’s injury and results in disability.”
Subsequent trial court rulings have stated that the psychological condition must result from the underlying physical injury and not just the work event itself.
Bottom line, the burden of proof is on the injured worker. These are difficult cases and you should always consult with a workers compensation attorney as soon as possible.
If you have suffered a mental injury, you should contact my office as soon as possible to discuss your particular situation. There is no obligation or charge for an initial consultation.
Update: Recently the Nebraska Unicameral expanded mental injuries to include coverage for mental injuries to “first responders” subject to exposure to conditions that are extraordinary and unusual in comparison to the normal conditions of the particular employment.
Nebraska Revised Statute 48-101.01. Mental injuries and mental illness; first responder; compensation; when.
1. Personal injury includes mental injuries and mental illness unaccompanied by physical injury for an employee who is a first responder if such first responder:
a. Establishes, by a preponderance of the evidence, that the employee’s employment conditions causing the mental injury or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment; and
b. Establishes, by a preponderance of the evidence, the medical causation between the mental injury or mental illness and the employment conditions by medical evidence.
2. For purposes of this section, mental injuries and mental illness arising out of and in the course of employment unaccompanied by physical injury are not considered compensable if they result from any event or series of events which are incidental to normal employer and employee relations, including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, or terminations.
3. For purposes of this section, first responder means a sheriff, a deputy sheriff, a police officer, an officer of the Nebraska State Patrol, a volunteer or paid firefighter, or a volunteer or paid individual licensed under a licensure classification in subdivision (1) of section 38-1217 who provides medical care in order to prevent loss of life or aggravation of physiological or psychological illness or injury.
