2019 Workers’ Compensation Legislation Update

By:  Kelli Anne Francis

The following is a brief summary of just some of the proposed legislation in the One Hundred Sixth Legislature’s First Session for 2019.  Bills that were left in committee typically mean that the introducer of the bill is working on some of the details or it can be delayed just due to procrastination or time constraints on the floor.

LB408 would change provisions relating to compensation paid upon the death of an employee under the Nebraska Workers’ Compensation Act. Currently, if an employee dies while in the course and scope of his employment and has no dependents, there are no death benefits paid.  This new bill would allow for a representative of the decedent’s estate to collect $25,000.00. This bill was introduced by Senator Dan Quick. It did receive floor debate on February 14 and again on March 25, 2019 The bill was then held in committee.

LB448 relates to burial expenses upon the death of an employee due to a work-related injury or illness. The bill proposes to change the burial expense from a maximum of $10,000 to an amount not to exceed fourteen times the state average weekly wage for the year of death.  The maximum weekly income benefit for 2019 is $855, thus increasing the maximum benefit up to $11,970.  This adjustment in LB448 would align cost of burial expenses with the cost of living increases. The bill was later amended to reflect twelve times the state average weekly wage. It was introduced by Senator Mike McDonnell.  It was set for a floor debate on May 13, 2019 but they ran out of time and adjourned before it made it to the floor.

The purpose of LB487 is to adopt an evidence-based drug formulary for prescription drugs. The formulary would apply to those Schedule II, III, IV, and V drugs prescribed and dispensed for workers’ compensation claims with a date of injury on or after January 1, 2020. A prescription drug listed and recommended in the formulary is presumed to be reasonable and may be prescribed without obtaining prior authorization from the insurer. A prescription drug that is not included in the formulary or one that is included within the formulary, but not recommended, requires prior authorization from the insurer before it is presumed to be reasonable. If an insurer denies payment or denies prior authorization based on the formulary, a party may request a finding by an independent medical examiner. The legislation also directs the Workers’ Compensation Court, in the course of adopting a drub formulary, to consult with stakeholders representing employers, insurers, private and public employees, medical providers, and attorneys. This bill was introduced by Senator Andrew La Grone. It remains held in committee.

Legislative Bill 526 proposes to fill a gap in coverage for employees receiving certain workers’ compensation benefit payments. Currently, there is a window where no benefits are paid to the employee between the termination of their temporary disability benefit payments and the commencement of their permanent disability benefit payments. LB 526 seeks to resolve this issue by outlining three dates when temporary disability benefit payments may cease as the later of: a determination of permanent disability, a determination of loss of earning capacity, or thirty days after notice has been given that temporary disability benefit payments will cease. This bill was introduced by Senator Mike McDonnell and is similar to the “Auxier” rule in Iowa workers’ compensation requiring similar provisions before the termination of benefits. An additional provision is the return to work. It remains held in committee.

LB576 would establish a rebuttable presumption that firefighters who suffer death or disability as a result of cancer, hypertension or heart or respiratory defect or disease, did so as a result of their work for the purposes of the Nebraska Workers’ Compensation Act. This rebuttable presumption already exists for other post-employment benefits. This bill was introduced by Senator Steve Lathrop. It is currently being held in committee. 

The legislature convenes again on January 8, 2020.