All Frequently Asked Questions
Following is a list of frequently asked questions and their answers. The information at this site is not a legal interpretation of the Nebraska Workers' Compensation Act, and the Workers' Compensation Court is not providing legal advice by providing the information. For legal advice you will need to contact your attorney. While every effort is made to provide useful information, we do not warrant the information to be authoritative, complete, final, factual, timely or accurate. The Nebraska Workers' Compensation Act may be found at Sections 48-101 through 48-1,118 of the Nebraska Revised Statutes.
What is workers' compensation?
Workers' compensation in Nebraska is designed to provide certain benefits to employees who sustain injury by accident or occupational disease arising out of and in the course of their employment, and who are not willfully negligent at the time of the injury.
It should not be confused with unemployment compensation, Social Security disability benefits, health and accident insurance, or other disability benefit plans provided by the employer.
The Nebraska Workers' Compensation Act, found at Section 48-101 to Section 48-1,118 of the Nebraska Revised Statutes, is the exclusive remedy of the injured employee if the employer has satisfied its legal obligation to secure payment of compensation under the act. Typically this is done by obtaining a workers' compensation insurance policy. In exchange for the right to receive workers' compensation benefits from the employer, an employee forfeits his or her right to file a civil action against the employer for damages for work-related injuries or illnesses.
Who is covered by the workers' compensation law?
The Nebraska Workers' Compensation Act applies to the State of Nebraska, to every governmental agency created by it, and to every employer in the state employing one or more employees in the regular trade, business, profession, or vocation of the employer. Thus, virtually all employees are covered by the workers' compensation law including employees of private industry, state and local government, part-time employees, minors, and employees of charitable organizations.
There are a few exceptions:
- Federal employees, railroad employees, most volunteers, and independent contractors are not covered under the Nebraska Workers' Compensation Act.
- Household domestic servants and some employees of agricultural operations are covered under the Nebraska Workers' Compensation Act only if the employer elects to provide worker's compensation insurance for them.
- Self-employed individuals, sole proprietors, partners, and limited liability company members who are actually engaged in the business on a substantially full-time basis may elect to be covered under the Nebraska Workers' Compensation Act. To elect coverage such a person must file a written election with the insurer from whom workers' compensation insurance coverage is obtained.
- Executive officers of Nebraska corporations who own 25 percent or more of the corporation's common stock are not considered employees of the corporation under the Nebraska Workers' Compensation Act unless they elect to be covered. To elect coverage, a corporate officer must file such election in writing with the workers' compensation insurer and the corporate secretary (not with the court).
- Executive officers of Nebraska nonprofit corporations who receive annual compensation of $1,000.00 or less from the corporation are not considered employees of the corporation under the Nebraska Workers' Compensation Act unless they elect to be covered. To elect coverage such officers must file a written election with the workers' compensation insurer and the corporate secretary (not with the court).
When is an employee entitled to Nebraska workers' compensation benefits?
An injured employee who is covered by the Nebraska Workers' Compensation Act may obtain benefits if:
- the injury was caused by an accident or disease that arose out of and in the course of his or her employment;
- the employee was not willfully negligent at the time of the injury;
- the employment was in the usual course of the trade, business, profession, or occupation of the employer; and
- the injury occurred in Nebraska; or
the employer was performing work in Nebraska or the employment was principally localized within this state, whether or not the injury occurred in Nebraska; or
the contract of hire was made in Nebraska and the employer was engaged in business or performing work in Nebraska, whether or not the injury occurred in Nebraska.
If an employee dies as a result of a work-related injury, the employee's dependents may also be entitled to benefits under the act.
To what benefits is an employee entitled?
A. Medical Benefits
The employer/insurer is liable for all reasonable medical and hospital services, appliances, prescribed drugs, prosthetic devices, and other supplies that are necessary as the result of a work-related injury. Expenses for medical travel may be paid in some instances.
There are rules about whether the employee or employer chooses the doctor. The employee has the right to select a physician who has maintained the medical records of the employee (or an immediate family member) when the employer notifies the employee of this right. If the employee does not have or does not choose such a physician, then the employer may select the physician. The initial choice of physician, when chosen by the employee or employer after the employer notifies the employee of the right to choose, can only be changed when both the employee and the employer agree on the change or the Nebraska Workers' Compensation Court orders the change. If the employer does not give proper notice to the employee regarding the right of selection, then the restrictions on changing physicians do not apply and the employee has the right to select any physician. The employee also may select a physician to perform a major surgical operation or in cases involving dismemberment.
"Physician" means any person licensed to practice medicine and surgery, osteopathic medicine chiropractic, podiatry, or dentistry in the State of Nebraska or in the state in which the physician is practicing. Please refer to the court's pamphlet, Choosing a Doctor for a Work-Related Injury (PDF: 1.0 KB), for more detailed information.
An employer/insurer may request that a disabled employee submit to a medical examination by a doctor of its choice at the company's expense.
An employee or an employer may use the court's informal dispute resolution process or independent medical examiner system to try to resolve a disagreement over a medical issue.
An employee may be required to receive medical services under a managed care plan if the employer has given the employee proper notice about the plan.
If an employee unreasonably refuses medical treatment, his or her compensation may be reduced, limited, or suspended.
Expenses for medical care should be submitted to the employer or to the insurer for payment.
B. Indemnity (Wage Loss) Benefits
Benefits are paid at the same interval as wages were paid at the time of the injury. Payments must be sent directly to the person entitled to compensation or his or her designated representative except where there is an attorney's lien or where child support is due. Benefits are not taxable and not assignable to another person.
Compensation benefits begin on the eighth calendar day of disability due to the injury. Compensation for the first seven days of disability is not paid unless the employee's disability lasts six weeks or more. The first day of disability is included in the seven-day waiting period and a partial day of disability is considered a full calendar day for purposes of the waiting period. The days of disability need not be consecutive. Time lost from work for less than a day to seek medical care, including physical or medical rehabilitation, is compensated as temporary partial disability.
1. Total Disability Benefits
Benefits may be either:
- temporary total disability; or,
- permanent total disability.
Total disability entitles the employee to two-thirds of his or her average weekly wage, subject to the maximum and minimum per week (see paragraph D below), for as long as the physician indicates the employee remains unable to work as a result of the injury.
2. Partial Disability Benefits
Benefits may be either:
- temporary partial; or,
- permanent partial loss of a member; or,
- permanent partial to the body as a whole.
Temporary Partial Benefits. Benefits are paid when the employee is able to return to work but under limited circumstances such as for a few hours a day or at a job which pays less than the job held at the time of the injury. Temporary partial benefits are paid during the period of partial disability, but not beyond 300 weeks. Temporary partial benefits are paid at the rate of two-thirds of the difference between the wages received at the time of the injury and the earning power of the employee thereafter subject to the maximum per week (see paragraph D below).
Permanent Partial Loss of a Member Benefits. Benefits are paid for the loss or loss of use of a body part such as a leg or hand based upon the statutory value of the various body parts. Benefits are paid at the rate of two-thirds of the employee's average weekly wage, subject to the maximum and minimum per week (see paragraph D below), times the number of weeks of compensation set out in the statutory schedule for the body part or percentage of loss thereof. The total loss or loss of use of two members in one accident is considered total and permanent disability.
Permanent Partial to the Body as a Whole. Benefits are paid for permanent disability resulting from the injury at a rate calculated upon the percentage of disability suffered, times two-thirds of the employee's average weekly wage, subject to the maximum per week (see paragraph D below). Benefits are limited to a maximum of 300 weeks less the number of weeks of temporary and permanent disability previously received.
3. Death Benefits
If the injury results in the death of the employee, the widow/widower is paid death benefits for his or her life or until remarriage. Upon remarriage, the widow/widower receives two years benefits in a lump sum. Benefits are calculated at 66 2/3 percent of the employee's average weekly wage at the time of the injury if there are no children, and at 75 percent if there are children, subject to the maximum and minimum per week (see paragraph D below). Children are entitled to a percentage of the death benefit until they reach age 19, or age 25 if enrolled full time at an accredited educational institution, or until the end of actual dependency. Additionally, burial expenses up to a maximum of $6,000.00 are paid.
C. Vocational Rehabilitation Benefits
When, as a result of an injury covered under the Nebraska Workers' Compensation Act, an employee is unable to return to suitable employment for which he or she has previous training or work experience, the employee is entitled to vocational rehabilitation services. These services are voluntary and, if not offered by the employer/insurer, the employee can request vocational rehabilitation services. If the parties are unable to agree on the choice of a vocational rehabilitation counselor, the parties can request the court's Vocational Rehabilitation Section to appoint a vocational rehabilitation counselor. If it is determined that the employee will need services, the vocational rehabilitation counselor can submit a plan of vocational rehabilitation services to the court for approval. The employer/insurer pays temporary disability benefits while the employee participates and makes satisfactory progress in the plan. The fee for evaluation and for the development and implementation of the plan will be paid by the employer/insurer. The Workers' Compensation Trust Fund, which is administered by the court, pays for the costs of the vocational rehabilitation plan. Questions concerning vocational rehabilitation services may be directed to a vocational rehabilitation specialist at the court.
D. Maximum and Minimum Weekly Income Benefits
The following link shows the maximum and minimum weekly income benefit levels for injuries occurring during their respective dates: Table of Maximum/Minimum Compensation Benefits (PDF: 0.25 KB).
How long does it take to receive compensation after the injury is reported?
The amount of time varies with employers and insurers. However, in certain circumstances, a 50 percent penalty may be added for waiting time if payment is not made within 30 days of the notice of injury. This requires a determination that there is no reasonable dispute regarding the employee's claim for benefits. This determination is generally made by a judge of the court after a hearing on the matter. Waiting-time penalties also apply when there is a failure to pay compensation after 30 days from the entry of a final order, award or judgment of the court.
When are permanent disability benefits paid?
After the employee has been released from medical treatment and is able to return to work, if the medical evidence indicates that the employee has suffered permanent disability due to the injury, the employee is entitled to payment for the degree of permanent disability sustained.
The employer/insurer may offer payment in a one-time lump sum, or over a period of weeks. When the claimant is not represented by an attorney and in some other situations, a lump sum settlement must be approved by the court in order to be binding on the parties and terminate the employee's right to any further benefits. In some cases, the parties may enter into a full settlement by filing a Release rather than a Lump Sum Settlement Application. A Release is not reviewed or approved by the court. The settlements that qualify to be filed as a Release may still be submitted as a Lump Sum Settlement Application for the court's review and approval, but it is not required.
How are workers' compensation benefits obtained?
An employee should notify his or her employer immediately of any work-related injury or occupational disease. The employee also should inform the treating physician that it is a work-related injury so that the doctor may comply with the statutory requirement to file a first treatment medical report with the employer/insurer. The employee also should submit charges for medical treatment to the employer/insurer so that they can be promptly paid.
What may an employee do if the employer/insurer does not pay benefits?
The employee may contact the Nebraska Workers' Compensation Court by calling either 800-599-5155 or 402-471-6468. A public information specialist will discuss the situation with the employee and refer him or her for further assistance when it is appropriate. The staff of the court may not provide legal advice or offer a legal opinion.
Any person involved in a workers' compensation claim may request informal dispute resolution to help settle an issue or an entire case without the need for a formal hearing. Neutral mediators can help people resolve their disputes and reach agreements. To request informal dispute resolution, write to the Nebraska Workers' Compensation Court Mediation Coordinator, P.O. Box 98908, Lincoln NE 68509-8908.
The employee may file a petition (lawsuit) with the Nebraska Workers' Compensation Court. Petition forms may be obtained from the Clerk of the Court. The employee may represent himself or herself, or may be represented by an attorney.
A petition must be filed within two years of the date of the accident or the date of last payment of compensation (either medical or indemnity payments) made, or the claim for compensation may be barred by the Statute of Limitations.
Upon receipt of the petition, the court will notify the employer/insurer by summons. The employer/insurer is given 14 days to file an answer. A hearing date then is set. The hearing is held in the county where the injury occurred or in any other county upon which the parties agree.
At the hearing, a judge of the Nebraska Workers' Compensation Court will hear the case and then make a written decision which will be mailed to all parties.
If either party does not agree with the decision, the decision may be appealed. For cases where a hearing on the merits was held before August 27, 2011, an Application for Review may be filed within 14 days of the date of the decision. A three-judge panel will review the case and make a decision. If either party does not agree with the compensation court review panel decision, it may be appealed to the Court of Appeals, or in some cases to the Supreme Court of the State of Nebraska. For cases filed after August 27, 2011, or in pending cases in which a hearing on the merits has not been held before August 27, 2011, an appeal will not have intermediate review by a compensation court review panel, but will be heard by the higher appellate court(s).
Do I need an attorney to receive workers' compensation benefits?
No. But you have the right to have an attorney represent you. In most cases benefits are paid without an attorney or the Workers' Compensation Court becoming involved.
The law does not require you to have an attorney in order to file a motion or petition (lawsuit) and receive a hearing before the court, and you may represent yourself at trial. No one other than you or an attorney may represent you. If you represent yourself you will be held to the same legal standards as parties who do have an attorney. If you choose to have an attorney it is your responsibility to contact the attorney and make the arrangements. The court may not do this for you, and the court may not recommend an attorney.
Who chooses the doctor for treatment of an employee's injury?
There are rules about whether the employee or employer chooses the doctor. The employee has the right to select a physician who has maintained the medical records of the employee (or an immediate family member) when the employer notifies the employee of this right. If the employee does not have or does not choose such a physician, then the employer may select the physician. If the employer does not give proper notice to the employee regarding the right of selection, then the restrictions on choosing and changing physicians do not apply and the employee has the right to select any physician. The employee also may select a physician to perform a major surgical operation or in cases involving dismemberment.
"Physician" means any person licensed to practice medicine and surgery, osteopathic medicine, chiropractic, podiatry, or dentistry in the State of Nebraska or in the state in which the physician is practicing. Please refer to the court's pamphlet, Choosing a Doctor for a Work-Related Injury (PDF: 1.0 KB), for more detailed information.
What if I want to change doctors?
If the doctor has been chosen by you or your employer after you were notified of your right to choose by your employer, you can't change doctors unless your employer agrees or the court orders a change. If you want to change, talk to your employer about the reasons. If your employer agrees, you may change. If your employer does not tell you about your right to choose a doctor, you may change doctors without your employer's agreement.
What if my employer won't agree to let me change doctors?
You can ask for Informal Dispute Resolution (IDR) from the court. You must first try to get your employer to agree to a change in doctors. If this doesn't work, you or your employer can ask for help through the IDR process. A court staff member will try to help you and your employer agree. If that doesn't work, a motion or petition (lawsuit) can be filed with the court.
What if my employer wants me to change doctors?
You can't be made to change your treating doctor if the doctor was chosen by you or your employer after your employer notified you of your right to choose a doctor, unless you agree or unless the court orders you to change.
Can my employer make me see another doctor?
Your employer cannot make you receive treatment from another doctor, but your employer (or its insurer) can ask you to see another doctor for an examination. If you unreasonably refuse to be examined by this doctor you may not receive compensation for the time you refuse to be seen. You may be asked to see more than one doctor for other examinations.
What doctor should I see if it is an emergency?
If it is an emergency, see any doctor as soon as you can. The rules regarding choice and change of doctor don't apply until after the emergency is over. Then, if you need more treatment, the rules apply.
Which doctor do I see if my employer or the insurer has a managed care plan?
You can still choose a doctor. You can choose one who has treated you or a family member before your injury, if that doctor agrees to the rules of the plan. Otherwise, you may choose among the doctors signed up with the plan.
Who is eligible to receive vocational rehabilitation services?
When, as a result of an injury covered under the Nebraska Workers' Compensation Act, an employee is unable to perform suitable work for which he or she has previous training or experience, the employee is entitled to such vocational rehabilitation services, including job placement and retraining, as may be reasonably necessary to restore him or her to suitable employment.
How can I request vocational rehabilitation services?
If, as a result of a job related injury, you are unable to return to your previous job or to employment for which you have previous training or experience, you may contact your employer or his or her insurer and request vocational rehabilitation services. If the employer/insurer does not agree to the need for vocational rehabilitation or approve the selection of a vocational counselor, you can contact the Workers' Compensation Court's Rehabilitation Section and request a vocational rehabilitation counselor to be assigned by the court.
What vocational rehabilitation services are available to me?
The goal of vocational rehabilitation is to assist the employee to return to suitable employment as soon as possible. Return to work with your previous employer or to employment for which you have training or work experience is emphasized, and direct job placement and on-the-job training is given first consideration. Your rehabilitation counselor will work closely with you to determine the most efficient way to return you to suitable employment. The following priorities must be followed when the counselor is evaluating, developing, and implementing a proposed rehabilitation plan (listed in order from lower to higher priority):
- Return to previous job with the same employer;
- Modification of the previous job with the same employer;
- A new job with the same employer;
- A job with a new employer; or
- A period of formal training which is designed to lead to employment in another career field.
After a proposed plan is developed, it must be approved by a rehabilitation specialist of the court and agreed to by the employer/insurer. If the plan is not approved or agreed to, a petition (lawsuit) can be filed with the court.
How will my vocational rehabilitation counselor be selected?
Either you or the employer/insurer may propose the initial selection of a vocational rehabilitation counselor. Both parties shall attempt to agree to the selection of the vocational rehabilitation counselor. If the parties are unable to agree to the selection of the counselor, either party may request, in writing, that the court assign a vocational rehabilitation counselor from the list of certified vocational rehabilitation counselors maintained by the court. Only one vocational rehabilitation counselor may provide vocational rehabilitation services at any one time. Also, either party may request a change of vocational rehabilitation counselor. Any change in the choice of a vocational rehabilitation counselor shall be approved by the court.
Who pays for vocational rehabilitation services?
When participating in a vocational rehabilitation plan approved by the court, your weekly temporary benefits and medical costs will continue to be paid by your employer/insurer. The fee for evaluation and for the development and implementation of the vocational rehabilitation plan will be paid by your employer/insurer. The required costs of the approved vocational rehabilitation plan such as transportation, tuition, books/supplies, and if required, the reasonable costs of room and board will be paid from the Workers' Compensation Trust Fund administered by the court. All expenses must have prior approval from one of the court's vocational rehabilitation specialists. Note: Some costs, for example child care services, are not covered by the Workers' Compensation Trust Fund.
Do I have the right to accept or decline vocational rehabilitation services?
Yes. Vocational rehabilitation services are voluntary. However, if without reasonable cause, you refuse to undertake or fail to cooperate with vocational rehabilitation services approved by the court as suitable, or you refuse to be evaluated or fail to cooperate in such evaluation, a judge of the compensation court may suspend, reduce or limit the compensation otherwise payable to you.
Can I exchange my rights to vocational rehabilitation services for a lump sum settlement?
No. You cannot waive your rights to vocational rehabilitation services in exchange for money. A lump sum settlement is an agreement to settle your workers' compensation benefits for a lump sum of money. If you have any questions about lump sum settlements, contact your attorney or the court.
If I accept vocational rehabilitation services, what are my responsibilities?
You must cooperate and take an active role in any vocational evaluation and, if needed, the development of a vocational rehabilitation plan to assist you in returning to suitable employment. Some of the responsibilities will include:
- Cooperating with reasonable evaluation and rehabilitation efforts directed toward assisting your return to suitable employment;
- Accepting a valid offer of suitable employment from your previous employer, or a new employer;
- Informing your counselor and employer/insurer of any problems which may interfere with your participation in vocational rehabilitation evaluations or services;
- Keeping your counselor, employer/insurer and the court's rehabilitation specialist advised of any change in address or telephone number;
- Providing the court with any requested information;
- Notifying one of the court's rehabilitation specialists if you discontinue your approved rehabilitation plan.
Should you fail to meet your responsibilities during vocational rehabilitation, your vocational rehabilitation services may be terminated.
If I accept vocational rehabilitation services, what are my rights?
- To request a preliminary evaluation of your need and ability to benefit from vocational rehabilitation services;
- To agree or disagree with the employer/insurer upon the selection of a vocational rehabilitation counselor;
- To participate in the development of a rehabilitation plan;
- To accept or reject any proposed vocational rehabilitation plan or rehabilitation services;
- To file a motion or petition (lawsuit) with the court to resolve any dispute.
What if I disagree with the vocational rehabilitation plan?
You have the right to participate in the development of your vocational rehabilitation plan. If you disagree with the plan developed by the vocational rehabilitation counselor, you do not have to sign or agree to the plan. You should state your reason why you disagree with the plan. While your counselor may still present the proposed plan to the court's Vocational Rehabilitation Section, you have the right to disagree with the plan. Note: If you have agreed to and signed the plan, but the employer/insurer denies the plan, you can file a motion or petition (lawsuit) with the court. You may also file a petition if the plan is disapproved by the court's Vocational Rehabilitation Section.
What are Second Injury Benefits?
Second injury benefit payments are limited to injuries that occurred before December 1, 1997. To qualify for second injury benefits, an employee must have a prior serious disability documented by the employer through written records when the employee is hired or retained in the employment. If a subsequent injury produces a greater disability than that which would have resulted from the last injury alone, a special trust fund administered by the court will pay for the increased disability and the employer will pay only for the last injury.
Can an employee obtain the name of the employer's workers' compensation insurer?
This information can be obtained by contacting the employer or the court. Insurance companies are required to report to the court each policy of workers' compensation insurance they issue and are subject to penalties for failure to report.
What workers' compensation coverage do I need if I am a nonresident employer with employees doing business in Nebraska?
Under the workers' compensation laws of Nebraska, most employers performing work in this state must obtain private insurance coverage to cover the risk of injury to their employees on the job. See "Who is covered by the workers' compensation law?" above. The Nebraska Workers' Compensation Act applies to every nonresident employer performing work in the state, for any length of time, who employs one or more employees in the regular trade, business, profession, or vocation of such employer. Workers' compensation coverage must be obtained from an insurance company licensed to provide workers' compensation coverage in Nebraska, unless the employer is authorized to self-insure workers' compensation liability under Nebraska law.
A number of other states provide workers' compensation coverage through a state fund. Currently, there is no state fund licensed to provide workers' compensation coverage in Nebraska. Nebraska also has no cooperative agreements to honor workers' compensation coverage provided by state funds in other states.
The Nebraska Workers Compensation Insurance Plan (NWCIP) provides workers' compensation and employers' liability coverage to employers who are unable to secure coverage through the voluntary market.
If you are a nonresident employer who already carries a workers' compensation policy, you may check with your insurer or the Nebraska Department of Insurance to verify whether the carrier is licensed to provide coverage in Nebraska.
How may an employer comply with the statutory requirement that workers' compensation coverage be provided?
Under the Nebraska Workers' Compensation Act, there are only three methods by which employers may fulfill their obligation to secure payment of compensation:
- by purchasing a policy of workers' compensation insurance from a private insurer licensed by the Nebraska Department of Insurance to write workers' compensation insurance;
- by applying to the Nebraska Workers' Compensation Court and obtaining the court's authorization to self-insure; or,
- in the case of an employer who is a lessor of one or more commercial motor vehicles leased to a self-insured motor carrier with its principal place of business in Nebraska, by entering into an effective agreement with the self-insured motor carrier that such carrier will pay workers' compensation benefits to an injured driver. This method will only satisfy the employer's obligation with respect to drivers. Any obligation with respect to other employees must be satisfied under one of the first two methods.
Do I need to file proof of workers' compensation coverage with the court?
The insurer will notify the court when you purchase a policy of workers' compensation insurance.
Who may be self-insured?
Employers who satisfy certain requirements and have been approved by the court may self-insure. The employer must be a corporation or political subdivision, with a minimum of five years in business under the present organizational structure, have a minimum of 100 employees, a strong financial base, and a positive program for safety. Once approved, a self-insurer must file a surety bond and excess insurance with the court. Any employer not approved by the court must carry a policy of workers' compensation insurance, or otherwise secure the payment of compensation as required by law.
What are the penalties for an employer's failure to provide workers' compensation insurance coverage?
Any one or more of the following penalties may be applied:
- a civil fine not to exceed $1,000.00 for each violation. Each day of continued failure to secure coverage constitutes a separate violation.
- imprisonment for not more than one year, a $1,000.00 fine, or both.
- enjoinder from doing business in Nebraska until compliance is secured.
Also, an injured employee may sue the employer for damages in district court, and the employer will lose its common law defenses.
How do I determine whether a worker is an independent contractor or an employee?
The Nebraska Workers' Compensation Act (Act) applies to the State of Nebraska, to every governmental agency created by it, and to every employer in the state employing one or more employees in the regular trade, business, profession, or vocation of the employer. Thus, virtually all employees are covered by the Act, including employees of private industry, state and local government, part-time employees, minors, and employees of charitable organizations. However, employers are not required to provide coverage for independent contractors. At times, there is disagreement on whether a worker is an employee or an independent contractor. While the Act does not define "independent contractor," case law provides several factors to consider when determining whether a worker is an employee or an independent contractor. This decision is made on a case-by-case basis, and no single factor is determinative. The Nebraska Supreme Court applies a ten-factor test which is summarized in the chart below. Further inquiries should be directed to:
Nebraska Workers' Compensation Court
P.O. Box 98908
Lincoln, NE 68509-8908
800-599-5155 or 402-471-6468
Factors considered when determining whether a worker is an independent contractor or an employee:
Factors considered when determining whether a worker is an independent contractor or an employee:
Extent of CONTROL the employer may exercise over details of work.
Employer controls and supervises the details of the work:
Employer has the ability to discipline.
Employer has limited, general control—only to the extent necessary to assure performance of the contract in accordance with its terms. Employer cannot discipline.
Whether the employee is engaged in a DISTINCT OCCUPATION or business.
Does not work for others and not engaged in a separate business operation. No other source of income. Work done furthers employer's business.
Can work for others concurrently. Worker does a similar service for other businesses or persons. Worker has other sources of income. Work being done furthers worker's business rather than employer's.
Is this the kind of occupation usually done under the direction of the employer, or by a SPECIALIST without supervision.
Under the direction of an employer.
Specialist without supervision.
The SKILL required in the particular occupation.
Who supplies the TOOLS, instrumentalities and place of work for the person doing the work.
Employer supplies the workplace, instruments and tools necessary to carry out the job.
Worker supplies the tools and instruments.
Length of TIME the person is employed.
Works on a continuous basis. Hours are specified by employer.
Works for the duration of a particular, terminable job. Flexible, self-arranged hours.
Method of PAYMENT.
Paid hourly, weekly or on a quantity basis. Deductions for social security taxes and income tax withholding.
Paid by the job. Profit is uncertain. Taxes not withheld.
Whether the work being done is part of REGULAR BUSINESS of employer.
Whether the PARTIES BELIEVE they are creating an employer/employee relationship.
Worker thinks of himself as an employee and other factors support worker's belief.
Contract labels person as an independent contractor and other factors support contract. However, a writing which merely denominates an independent contractor relationship will be ineffective if it does not reflect the true arrangement.
Whether the employer is or is not IN BUSINESS.
Employer is engaged in a business enterprise.
Employer is not engaged in a business enterprise.
Are agricultural operations subject to the Nebraska Workers' Compensation Act?
The status of agricultural operations under the Nebraska Workers' Compensation Act was changed by LB 210 from the 2003 session of the Nebraska Legislature. Employers engaged in an agricultural operation are exempt from providing workers' compensation insurance coverage if they employ only related employees. Agricultural employers who employ unrelated employees are also exempt unless in a calendar year they employ 10 or more unrelated, full-time employees, on each working day for 13 calendar weeks (consecutive or not). The act applies to an employer 30 days after the 13th week.
An employer exempt from the act may elect to provide workers' compensation coverage for its employees. Such election is made by the employer obtaining a workers' compensation insurance policy from an insurer licensed to write workers' compensation insurance in Nebraska.
Every exempt employer who does not elect to provide workers' compensation insurance coverage must give all unrelated employees the following written notice at the time of hiring or at any time more than 30 calendar days prior to the time of injury: "In this employment you will not be covered by the Nebraska Workers' Compensation Act and you will not be compensated under the act if you are injured on the job or suffer an occupational disease. You should plan accordingly." The notice must be signed by the unrelated employee and retained by the employer.
Failure to provide this notice subjects an employer to liability under the act
for any unrelated employee to whom such notice was not given.
The following definitions are included in LB210:
- Agricultural operation: The cultivation of land for the production of agricultural crops, fruit, or other horticultural products; or the ownership, keeping, or feeding of animals for the production of livestock or livestock products.
- Full-time employee: A person who is employed to work one-half or more of the regularly scheduled hours during each pay period.
- Related employee: A spouse of an employer and an employee related to the employer within the third degree by blood or marriage. This includes parents, grandparents, great grandparents, children, grandchildren, great grandchildren, brothers, sisters, uncles, aunts, nephews, nieces, and spouses of the same.
Select the following link for further information: Agricultural Operations & Workers' Compensation (PDF: 2.0 KB)
What should an employer do after receiving notice of an on-the-job injury?
The employer should notify its workers' compensation insurer of the injury or occupational disease and either the employer or the insurer should file a First Report of Alleged Occupational Injury or Illness with the court within 10 days of the date of the notice of injury. The injured employee is not responsible for filing this report.
The insurer investigates the claim and, generally, should begin making compensation payments for lost wages (indemnity) and medical expenses within 30 days of notice of the injury. However, payment of benefits may be delayed if liability for the claim is disputed.
May an employer directly pay medical bills for a workers' compensation claim?
A non-self insured employer is not permitted to directly pay for medical treatment required under the Nebraska Workers’ Compensation Act. In essence, this would be an attempt by the employer to self insure its liability for such treatment without first being approved by the court for self insurance as required in the Act and rules of the court. In addition, the Nebraska legislature has addressed the issue of payment for small medical claims and specifically determined that payment must be made by the insurer, rather than the employer. This is included in 48-146.03, which provides for a medical deductible option for workers’ compensation insurance policies. That section first establishes such a deductible but then states that the insurer shall pay the entire cost of medical benefits for each claim irrespective of the deductible provision. The insurer is then to be reimbursed by the employer for any deductible amounts paid by the insurer.
How do I verify that the insurer filed a workers' compensation claim for an injured employee?
You may select this link to request records from the court.
How do I verify that workers' compensation insurance coverage is in place?
To verify workers' compensation insurance coverage, you may select this link to go to the court's Nebraska Proof of Coverage Online Look-Up Application. Members of the public may now search for workers' compensation insurance information for a particluar employer, on a particular date, through the our web site. This service is provided free of charge.
Who can I contact with insurance policy questions?
The Nebraska Department of Insurance can provide information regarding Property and Casualty Guidelines, including experience modifications, classification codes, loss cost multipliers, premium rates, wrap-up programs, and the workers' compensation assigned risk plan.
What if I suspect workers' compensation fraud?
If you suspect workers' compensation fraud, you may select this link to the Insurance Fraud Prevention Division of the Nebraska Department of Insurance.
May an employer use the services of a managed care plan?
An employer may use the services of a managed care plan that has been certified by the court. However, an employer may not contract directly with a certified managed care plan unless the employer has been approved as a self-insurer by the court. Other employers may use the services of a certified managed care plan that has contracted with the employer's workers' compensation insurer or intergovernmental risk management pool. Only a plan that has been certified by the court may be used for workers' compensation purposes in Nebraska. When a certified managed care plan is used, the employer must give full notice to each covered employee about how to receive services and the rights of the employee under the plan.
How should electronic submissions (EDI transactions) be submitted to the Nebraska Workers' Compensation Court?
The court accepts all EDI transmissions through several different communication interfaces. A direct connection to our EDI FTP server is available to trading partners that wish to use secure FTP using FTP/TLS encryption. The Advantis VAN, the Red Oak E-Commerce Solutions, Inc., Bridium and HealthTech products are communication options used by many of our current trading partners.
Please select this link to view our current EDI Vendors (PDF: 0.25 KB).