Legal Question in Workers Comp in Nebraska

Re: workmans comp death benefit

I had the opportunity to do a little research on this issue this morning. Below is part of an unpublished opinion from the Nebraska Court of Appeals:

We believe the applicable law is stated in the case Campos v. Tomoi, 175 Neb. 555, 122 N.W.2d 473 (1963). In Campos, the Nebraska Supreme Court stated, "'A workman is not a farm laborer simply because at the moment he is doing work on a farm; nor because the task on which he is engaged [*9] happens to be what is ordinarily considered farm labor.'" 175 Neb. at 558, 122 N.W.2d at 475. The court went on to say, "'The whole character of the employment must be looked to to determine whether [an employee] is a farm laborer'" within the Nebraska Workers' Compensation Act, id. (emphasis omitted), and "'neither the pending task nor the place where it is being performed'" is controlling, id.

In addition, it is generally held that occasional excursions into or out of agricultural duties are disregarded when the employee by virtue of his or her regular employment has status as a covered employee and that the temporary assignment of nonagricultural employees to farmwork will not interrupt their compensation coverage. 4 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law � 75.04 (1999).

Midwest contends that Swisher was a farm laborer at the time he was injured and thus not entitled to workers' compensation benefits. Swisher, on the other hand, contends that he was a construction laborer hired by Midwest and that at the direction of his employer, Hall, he did work considered to be farm or ranch work. Swisher further contends that his occasional [*10] excursions into farmwork at the request of Hall should not exclude Swisher from workers' compensation coverage.

Viewing the evidence in the light most favorable to Swisher and giving Swisher the benefit of all reasonable inferences deducible from the evidence, we find that there is a genuine issue of material fact as to whether Swisher's tending to the bull, when compared to the whole character of his employment, rendered him a farm laborer at the time he was injured. There is evidence in the record to support Swisher's contention that he was not a farm laborer and therefore was not excluded under the Nebraska Workers' Compensation Act at the time he was injured. Therefore, the trial court erred in granting Midwest's motion for summary judgment.

Re: workmans comp death benefit

Thank you for your inquiry. It would be important to know the unfortunate manner in which your father died. His actual activity may have subtantial bearing on the way the work comp court would view his employment status. Also even if he is considered a farm employee there may be a negligence claim against the employer or others. An employer cannot claim the exclusivity bar of workers compensation if it denies coverage for workers compensation.

Please feel free to give me a call with some details, and with a little bit of research I should be able to form some initial opinions on how to best proceed.

James E. Harris

Harris Feldman Law Offices

10050 Regency Circle Suite 101

Omaha,NE 68114

402-397-1200

402-397-1201 fax

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www.harrisfeldman.com

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