Summary: Nebraska would take a step in right direction in protecting vulnerable retail and fast food workers by providing some baseline workers compensation coverage for all workers for purely mental injuries. Louisiana is one model Nebraska could use.
Convenience store clerks and fast food workers are routinely victimized in armed robberies. But depending on where they live, they may not have workers’ compensation for the mental trauma caused by being subjected to armed threats.
In workers’ compensation lingo these injuries are referred to as “mental-mental” injuries – mental trauma without a physical injury. If you read this blog, you know retail and fast food workers lack those protections in Nebraska.
But thanks to a social media interaction with a Louisiana workers’ compensation lawyer, Jenny Barber Valois, I found out that retail and fast food workers in Louisiana can receive workers’ compensation for mental-mental injuries that arise out of violent armed robberies.
The main advantage of Louisiana “mental-mental” law over Nebraska law, is that Louisiana law applies to all workers covered by their act. In Nebraska, only first responders can collect mental-mental benefits. Both Nebraska and Louisiana require workers to be subjected to unusual and extraordinary stressors on the job to be eligible for workers’ compensation benefits.
But Nebraska first responders would give up a lot of protections if Louisiana mental-mental law applied to them.
Louisiana law requires proof of mental-mental injuries by clear and convincing evidence, where Nebraska law only requires first responders prove their injuries by a preponderance of the evidence. Louisiana only allows psychiatrists or psychologists to testify as to causation of mental trauma injuries.
This is a tough standard because this excludes general practitioners who often provide mental-health care. At least in rural Nebraska, this would be an even harder standard to meet due to the shortage of mental health providers.
In contrast, Nebraska law allows first responders to prove their cases with “mental health professionals” which allows general practice doctors and most counselors to help prove mental-mental injuries. Counselors are not defined as “Rule 10” experts in the Nebraska Workers’ Compensation Court. This means their testimony could not be used to prove causation of a physical-mental injury for a non-first responder.
In short, Nebraska has great mental-mental workers’ compensation laws for first responders but non-existent protections for everyone else – including vulnerable workers like convenience store clerks and fast food workers. Louisiana at least provides a baseline of protection from mental-mental injuries to all workers, even their law raises difficult substantive and practical barriers to getting mental-mental benefits. I believe it would be a step in the right direction for Nebraska to adopt Louisiana’s baseline of protection for mental-mental injuries for non-first responders. Something is better than nothing.