Neb. Rev. Stat. 48-146.02: Useful tool for workers or another yipping porch dog?

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Injured workers covered by the Nebraska Workers’ Compensation Act can’t sue their insurers/claims administrators for bad faith handling and denials of workers’ compensation claims. Injured workers are stuck with the fee and penalty provisions under Neb. Rev. Stat. 48-125 which one former judge referred to as an ineffectual “yipping porch dog.

But I participated in some discussion with other Nebraska lawyers about another way to discourage bad faith handling of workers’ compensation claims: Neb. Rev. Stat. 48-146.02.

Neb. Rev. Stat. 48-146.02

48-146.02 allows a three judge panel of the Nebraska Workers Compensation Court to revoke self-insurance for privileges for employers or recommend to the Department of Insurance that they revoke the ability of a workers’ compensation insurer to do business in Nebraska. The three judge panel can act if they hold a hearing and find that an insurer/claims administrator fails to comply with their obligations under the Nebraska Workers’ Compensation with such frequency that it finds it to be a general business practice.

But even if a party succeeds in a claim there is no mention of any way for a successful claimant to be paid anything in the way of a penalty, attorney fees or a liquidated damage. The language of 48-146.02 would also indicate that a case under 48-146.02 would probably have to involve multiple parties alleging similar conduct by an insurer or claims administrator.

Could a group of plaintiffs bring what amounts to collective or class action case in the Nebraska Workers’ Compensation Court against an insurer for bad faith under 48-146.02? Yes, I think there is a path.

Neb. Rev. Stat. 48-162.03 give parties broad ability to file motions with the court. The language of 48-146.02 refers to making a motion to a three judge panel rather than filing a petition.

NWCC Rule 3(k) allows the court to consolidate similar causes of action. So sure, I think a group of plaintiffs could bring a case under 48-146.02, but there would be no financial benefit to the parties bringing those claims under current law.

48-146.02 allows the Nebraska Workers’ Compensation Court administrator to request the Attorney General file a motion with a three Judge panel. But that means a group of wronged plaintiff’s need to persuade the 1) the court administrator and 2) the Attorney General to pursue the case just to get a hearing.

In my mind, a simple bad faith tort action filed by an individual plaintiff wronged by an insurer or claims administrator is a more effective deterrent against bad faith insurance practices in workers’ compensation than either a multi-layered administrative process or what amounts to a pro bono class or collective action claim.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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