Bill Would Expand Workers’ Comp Coverage in Neb.

February 13, 2008

Employees with mental illnesses caused by witnessing violent acts such as the Omaha mall killings in December could receive workers’ compensation benefits under a measure being considered by state lawmakers.

State officials estimate that expanding the list of injuries covered by workers’ compensation to include mental, and not just physical, harm could cost the state $3.5 million to $26.7 million more a year in additional indemnity and medical compensation for state employees.

But Sen. Abbie Cornett of Omaha, a former police officer who introduced the measure, said it’s only fair mental illness be covered. She described the trauma of having walked along a quarter-mile section of train track after a wreck while a police officer, picking up body parts.

“Mental injuries are real,” Cornett told the Legislature’s Business and Labor Committee on Monday. “They can be every bit as painful and debilitating as physical injuries.”

A high-profile court case involving a state trooper who killed himself after the 2002 Norfolk bank murders, reportedly because of mental anguish, gave Cornett the idea for the bill (LB1082).

About a week before five people were murdered in a bank, trooper Mark Zach ticketed one of the four men involved in the slayings — Erick Vela — for carrying a concealed weapon. But Zach accidentally transposed a serial number during a check of the gun, so it did not register as stolen.

Vela was arrested but soon released and allowed to keep the gun. Zach committed suicide the day after the murders in September 2002.

Attorneys for Zach’s family argued workers’ compensation benefits were owed because his death stemmed from a job-related occupational disease caused by the stress of learning of the mistake.

Compensation was initially turned down by a state Workers’ Compensation Court judge but granted on appeal. The Nebraska State Patrol appealed that decision and early last year the state high court ruled that the initial decision to deny benefits was the right one, because Zach’s death was alleged to have been caused entirely by mental anguish.

“We conclude that under current Nebraska law, a compensable injury caused by an occupational disease must involve some physical stimulus constituting violence to the physical structure of the body,” the court wrote in its opinion explaining the ruling.

A 1997 study by the New York Workers’ Compensation Board found that the cost of mental-illness claims is about 50 percent more than the average claim for a traumatic injury, and that the claims are paid out over longer period — about 16 more weeks.

Sen. Tom White of Omaha questioned whether including mental illness as a workers’ compensation claim would actually increase overall costs. Not paying to help alleviate mental illness caused on-the-job has its own costs, such as in lost productivity, White said.

Among those opposed to the bill are the Property Casualty Insurers Association of America, a representative of which said the proposed bill could hike workers’ compensation insurance rates, and the Nebraska Chamber of Commerce.

“Shoppers who saw the same act,” Dan Fridrich of the state chamber said of the December mall shooting in Omaha, where nine people were killed, “would not receive any type of compensation,” under the bill.

But there is not an expectation under current law that customers injured in the same accidents as employees get benefits under workers’ compensation, Sen. Steve Lathrop of Omaha countered.

Sen. Ernie Chambers of Omaha questioned whether police officers and firefighters should be covered by the bill because the nature of their jobs dictates that they expect to encounter violent acts.

Cornett said it is her intent to have a different standard for police, firefighters and other first responders.

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