Workers’ Compensation Law in Nebraska
Nebraska Revised Statute 42-101 is written to establish workers’ compensation as the “exclusive” remedy for workplace injuries and illnesses, which pretty much absolves employers of any personal liability through lawsuits.
The statute specifically rules that a workers’ compensation claim can be successful only if the injury or illness fulfills two standards: “arising out of employment” and “in the course of employment.” Thus, injuries sustained commuting to and from work are not covered since they are not sustained “in the course of employment.” Fooling around at work and injuring yourself due to non-work-related activities also might not be honored because it didn’t arise “out of employment.”
Exceptions to the Rule
Personal injury lawsuits can be initiated under a few circumstances. If your employer does not carry workers’ compensation insurance, they leave themselves open to a lawsuit. Or, if the employer intentionally inflicts harm on you, for instance, by getting angry and throwing something at you and injuring you, you may have an intentional tort case.
More likely, depending on the circumstances, is a third-party lawsuit. This can occur when you are injured by a faulty piece of machinery during the course of your job. Even if you are receiving workers’ compensation benefits, if your injury resulted from a product defect or systemic failure, you can sue the manufacturer for personal injury.
Third-party claims can also be made against the designer of the product if the defect was there from the beginning, or even against the distributor for not providing adequate warnings or instructions about the use of the equipment.
Another example would be if your employer sends you out on business to call on a client and you’re involved in an auto collision. You could be eligible not only for workers’ compensation but also for action against the other driver if fault can be proven.
Construction sites are often prone to accidents caused by equipment and drivers of other vehicles, leaving open the potential for third-party claims.
If your injury or illness is caused by a toxic substance, a third-party claim may also be possible if the product was not safely packaged or instructions and warnings were insufficient.
Liability and Compensation
In third-party personal injury claims, you generally must show negligence on the part of the third party. This means that:
- The defendant had a duty of reasonable care
- The defendant’s action breached this duty
- As a result, the plaintiff suffered damages, i.e., an injury or injuries
However, in cases of product liability, you can sue under the standard of “strict liability,” which means that you don’t have to prove negligence. If the product is shown to be defective by design, by manufacturing problem, or by marketing (lack of warnings/instructions), then a lawsuit can proceed under strict liability.
A successful third-party lawsuit can expand your level of benefits. Workers’ compensation will cover medical expenses and some disability payments but generally not at full salary, maybe two-thirds or less. If you can prove negligence or liability of a third party, your benefits can expand to include:
- Current and future medical costs
- Loss of income (present and future)
- Modification to home or vehicle to accommodate your injury/disability
- Pain and suffering
- Loss of companionship
One thing to remember, however, is that Nebraska is a modified comparative negligence state, meaning that both parties in an injury can be at fault. If you, for instance, are found to be 25% at fault for driving too fast during your business-related car wreck, and the reward is $100,000, it will be reduced to $75,000. If you’re found to be 50% or more at fault, you cannot collect anything.