The shortage of mental-health care providers in Nebraska makes it harder for rural residents to get prompt care for mental injuries on the job; harder to prove cases for mental injury at work

Nebraska has a shortage of mental-health practitioners that is particularity serious in rural areas. This shortage of mental health providers delays and impairs the recovery of injured workers in Nebraska who suffer a mental injury as a result of physical injury or a mental injury on the job. It also makes these claims harder to prosecute.

Quick Review: Who gets mental injury benefits in Nebraska

Unless you are a first responder as defined by Neb. Rev. Stat. 48-101.1, an injured worker can only be covered for a mental injury if it is related to a physical injury. This can happen with any kind of injury, but in my experience it is most common with head injuries.

First responders in Nebraska, can collect for purely mental or “mental-mental” injuries. The definition of first responder has been generally expanded from police and firefighters to include corrections officers and mental health technicians in our state mental hospitals.

Volunteer firefighters are also eligible for workers’ compensation benefits including mental-mental benefits.

How the lack of mental health care providers effects a workers’ compensation claim

I believe the first drawback for injured workers is delayed treatment. Delayed treatment can lead to more severe permanent injuries

Maybe when everything goes smoothly in a workers’ compensation case, which usually isn’t happening if an injured worker is calling a lawyer, a delay in treatment can lead to longer payment of temporary total disability benefits.

But even assuming those temporary benefits are fair, workers’ compensation benefits aren’t designed to fully compensate employees for work injuries. But workers give up full payment for the promise of prompt payment of benefits. But if mental health practitioners aren’t available, injured workers will not get prompt medical treatment for a mental injury.

The lack of mental health providers in rural areas deprives rural workers a substantial part of the so-called grand bargain of workers’ compensation – prompt payment of defined benefits for work injuries.

Another element of the grand bargain are less formal rules of evidence and procedure that should make it easier to prove cases for injured workers. But again, the lack of mental health providers in rural areas makes it harder for rural workers to take advantage of that aspect of the grand bargain as well.

But even if mental-health practitioners are available, they may not qualify as expert witnesses under Nebraska workers’ compensation law.

Many mental health treaters aren’t qualified to testify by report

In Nebraska only a psychologist or a medical doctor is qualified to testify to submit a written report about a mental injury in a workers’ compensation case. The inability of physicians’ assistants or nurse practitioners to testify by report is already a problem for Nebraska residents in more remote areas of the state. The same issues would apply to counselor who isn’t a psychologist who treats an injured worker for a mental injury.

But while the small town nurse practitioner and counselor who treat mental work injuries don’t qualify as so-called Rule 10 experts in the Nebraska workers’ compensation court, the hired gun MDs and PhDs in Lincoln, Omaha or Denver who insurers and claims administrators send rural workers to do qualify as Rule 10 experts.

Lawyers for injured workers can sometimes fix these issues. Sometimes MDs or psychologists will endorse the findings of counselors. Other times a plaintiff’s lawyer can arrange for a medical examination. But neither of those approaches is fool-proof when it comes to litigation. But even when those tactics work in a case, they often don’t address the problem that an employee is not receiving prompt mental health treatment when it is needed.

Other solutions?

A lawyer would be free to call a counselor to testify live at a workers’ compensation trial, but that depends on the counselor’s willingness to cooperate in litigation. (Sure, you can subpoena a witness, but that’s not a great option.)

Congress looks likely to pass increased funding for mental-health in response to publicized mass-shootings in Uvalde, Texas and Buffalo. Hopefully the funding is adequate to help address the mental-health care provider shortage in Nebraska.